American Contract Law for a Global Age, 2017a

contained a disciplinary rule prohibiting restrictive covenants between attorneys.
The ethical rules adopted by this court provide:
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 lawyers right to
practice is part of the settlement of a controversy between private
parties.
Ethical Rule (“ER”) 5.6, Arizona Rules of Professional Conduct, Rule 42.
Restrictive covenants between lawyers limit not only their professional
autonomy but also the client’s freedom to choose a lawyer. We do not, of course, enact
ethical rules for the medical profession, but given the view of the AMA to which we
have previously alluded, we believe the principle behind prohibiting restrictive
covenants in the legal profession is relevant.
Commercial standards may not be used to evaluate the reasonableness of
lawyer restrictive covenants. Strong public policy considerations preclude their
applicability. In that sense lawyer restrictions are injurious to the public interest. A
client is always entitled to be represented by counsel of his own choosing. The
attorney-client relationship is consensual, highly fiduciary on the part of counsel, and
he may do nothing which restricts the right of the client to repose confidence in any
counsel of his choice. No concept of the practice of law is more deeply rooted.
We therefore conclude that the doctor-patient relationship is special and
entitled to unique protection. It cannot be easily or accurately compared to
relationships in the commercial context. In light of the great public policy interest
involved in covenants not to compete between physicians, each agreement will be
strictly construed for reasonableness.
Reasonableness is a fact-intensive inquiry that depends on the totality of the
circumstances. A restriction is unreasonable and thus will not be enforced: (1) if the
restraint is greater than necessary to protect the employer’s legitimate interest; or
(2) if that interest is outweighed by the hardship to the employee and the likely injury
to the public. Thus, in the present case, the reasonableness inquiry requires us to
examine the interests of the employer, employee, patients, and public in general.
Balancing these competing interests is no easy task and no exact formula can be used.
VMS contends, and the court of appeals agreed, that it has a protectable
interest in its patients and referral sources. In the commercial context, it is clear that
employers have a legitimate interest in retaining their customer base. The employer’s
point of view is that the company’s clientele is an asset of value which has been
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UNIT 16: POLICY-BASED DEFENSES 319