Plagiarism Exercise

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First skim the following materials, which are excerpted from primary and secondary sources. Then read the excerpted sample memorandum that incorporate those sources. For each paragraph in the student memorandum, determine whether the student has avoided committing plagiarism and explain why or why not. For answers, please refer to the answer key, or you can click on the number before each question for the answer to that question.

Primary Source (as downloaded from Westlaw)

'Whiteside v. Griffis & Griffis, P.C.,' 902 S.W.2d 739, 744 (Tex. App. 1995).

The rationale behind the majority view is clear. The purpose of DR 2-108 is to protect the public’s right to select the attorney of their choice. Anderson, 461 N.W.2d at 601; Jacob, 607 A.2d at 148; Cohen, 550 N.E.2d at 411; Spiegel, 811 S.W.2d at 530; see 2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 5.6:101 (1990); Terry, supra, at 1072; Draper, supra, at 163; Penasack, supra, at 901-03; Tex. Comm. on Professional Ethics, Op. 422, 48 Tex.B.J. 209 (1985).Indirect financial disincentives may interfere with this right just as much as direct covenants not to compete. A provision offering financial disincentives may force lawyers to give up their clients, thereby interfering with the client’s freedom of choice. Anderson, 461 N.W.2d at 601; Jacob, 607 A.2d at 148; Cohen, 550 N.E.2d at 411; Spiegel, 811 S.W.2d at 530; Hillman, supra,§ 2.3.3.2,at 32. This violates both the language and spirit of DR 2-108 by restricting the practice of law.

Whiteside directs us to a California Supreme Court opinion adopting the contrary position. See Howard v. Babcock,6 Cal.4th 409, 25 Cal.Rptr.2d 80,863 P.2d 150(1993. In Howard, the court held that an agreement imposing a reasonable cost on departing partners who compete with the firm in a limited area is enforceable. Id. at 90,863 P.2d at 160.

Secondary Sources (as downloaded from Westlaw)

Glen S. Draper, Student Author, Enforcing Lawyers’ Covenants Not to Compete, 69 Wash. L. Rev. 161, 174-75 (1994). The public interest in unfettered competition among attorneys is no greater than the public interest in many professions. The public interest in freedom to choose one’s attorney, for [*175] example, is surely no more significant than the public interest in choosing one’s doctor. Attorneys’ covenants not to compete are no more injurious to the public than those between other professionals. Therefore, courts should abandon the per se rule which applies solely to attorneys’ covenants not to compete in favor of the reasonableness rule applicable to all other professions.

Kirstan Penasack, Student Author, Abandoning the Per Se Rule Against Law Firm Agreements Anticipating Competition: Comment on Haight, Brown & Bonesteel v. Superior Court of Los Angeles County, 5 Geo. J. Leg. Ethics 889, 892 (1992).

*892 Agreements anticipating competition would serve to ameliorate the effects of grabbing, except that courts routinely invalidate these agreements between lawyers. Why? The courts rely heavily on decisions of the profession’s own bar ethics committees, which invalidate these agreements as violations of self-promulgated ethical standards. The crux of the problem is the profession’s powerful, yet little known, [FN14] per se ban on restrictive covenants of any form. The per se ban originated within the American Bar Association in 1961, was subsequently adopted in both the Model Code and the Model Rules, and has universally prevailed in state courts as well as bar ethics committees for three decades. Model Rule 5.6 and its Model Code counterpart DR 2-108, which forbid restrictions on the right of a lawyer to practice law, have been justified by the need for lawyer personal autonomy and the principle that clients should have an unfettered right to choose representation from the widest pool of lawyers.

The California Court of Appeal, in Haight, Brown & Bonesteel v. Superior Court of Los Angeles Co., [FN15] recently rejected the per se rule that resulted in the invalidation of agreements anticipating competition. The court recognized the principle of client choice, the traditional justification for invalidating outright bans on competition, but refused to hold that this public policy “places lawyers in a class apart from other business and professional partnerships,”[FN16] in which reasonable covenants not to compete are upheld as a valid means of protecting firms’ legitimate interests. . . .

Sample Student Memorandum

[1] Although agreements anticipating competition, like the one at issue, may ultimately prevent client grabbing, the courts often hold that the agreements are unenforceable. Kirstan Penasack, Student Author, Abandoning the Per Se Rule Against Law Firm Agreements Anticipating Competition: Comment on Haight, Brown & Bonesteel v. Superior Court of Los Angeles County, 5 Geo. J. Leg. Ethics 889, 892 (1992).