This Article proposes that the AMA adopt rules governing restrictive covenants for doctors similar to those already adopted by the ABA for attorneys. The ABA's current rules allow for restrictive covenants in a limited number of situations - including restrictive covenants incident to the sale of a law practice - but specifically prohibit restrictive covenants as a condition to an employment agreement. The ABA's approach is nuanced and equitable. Both the underlying rationales and practical effects of the ABA's current rules governing non-compete clauses in the legal profession serve as persuasive justifications for adopting the same rules in the medical context. These rules serve to regulate competition among lawyers, while protecting both attorney and client freedom of choice, and would serve similar ends in the medical profession. Part II will examine restrictive covenants generally and then specifically within the context of medical practitioners. In doing so, it will address the public interest implicated by the physician-patient relationship. After that, Part II will illustrate how limiting restrictive covenants to only those incident to the sale of a medical practice is preferable to the current situation, as the harm to the public of permitting restrictive covenants in that context only is not significant. Next, the Article, in Part III, will detail the ABA's approach to noncompete clauses as articulated in the ABA's Model Rules of Professional Conduct 5.6 and 1.17. With this as the basis, it will then describe the AMA's current failure to address restrictive covenants concretely. This Part will also detail the AMA's misguided justifications for its current position - describing the AMA's failure to properly understand the Federal Trade Commission's (FTC) current rulings. Finally, Part IV will demonstrate the AMA's need to adopt a position similar to that of the ABA in order to protect the interests of both physicians and patients. In doing so, the analysis will demonstrate how adopting a variant of the ABA's rule in the context of the medical profession comports with the FTC's most recent applicable rulings and alleviates concerns regarding the public interest in the physician-patient context.
Why Doctors Shouldn't Practice Law: The American Medical Association's Misdiagnosis of Physician Non-Complete Causes,
74 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol74/iss4/5