dissenting.
Because I would affirm the judgment of the trial court, I respectfully dissent.
I would prefer to base my dissent on the ground that a covenant not to compete between or among members of the medical profession is not enforceable as a matter of public policy. However, the majority is correct in saying that the Supreme Court has upheld a covenant, essentially identical to the one here involved, between partners in the same medical clinic as these plaintiffs, where the clinic sought enforcement against a withdrawing partner. McCallum v. Asbury, 238 Or 257, 393 P2d 774 (1964). Others, too, have been approved. Hunter v. Straube, 273 Or 720, 543 P2d 278 (1976). We are not free to overrule those cases, but, I am hopeful the Supreme Court will reconsider them and adopt a public policy for this state recognizing that the medical profession is affected with a public interest which precludes its members from agreeing among themselves that one or more of them may not fill the public need for his, her or their services in a given community.
It is not my purpose to explore the field in depth. It is sufficient to point out that at common law covenants not to compete were considered void as against public policy, with only narrowly drawn exceptions: when they are executed ancillary to a contract of sale of a going business or to a contract of employment and are reasonable as to duration and territorial extent. The underlying theory of *808those two exceptions is that the buyer of a going business (including its goodwill), and the employer of one who, by virtue of his employment, would be in a position to exploit customer lists or contracts, or trade secrets, has cognizable rights which require reasonable protection in equity, when that protection is not injurious to the public interest. The Supreme Court has recognized the foregoing history of the rules. See, e.g., North Pacific Lumber Co. v. Oliver, 286 Or 639, 649, 596 P2d 931 (1979).1 The enforcement of such covenants under those limited business-related circumstances, so long as the restraint is reasonable in time and space, was, and still is, justified.
However, to extend those rules to the professions, particularly the medical and legal professions, is to ignore both the personal nature of the services performed, the public need for them and the confidential and intimate relationships which develop between doctor-patient and lawyer-client. The right of one to select his or her physician and lawyer is fundamental and ought to be encouraged, not discouraged. The Supreme Court has adopted a disciplinary rule (DR 2-108(A))2 which prohibits such covenants between lawyers. I think it is safe to say that the public need and demand for doctors is, generally, greater than the need and demand for lawyers; a fortiori, such covenants between *809doctors should be held to contravene public policy3 and not be enforced. It may be that both the medical and legal professions are progressing toward becoming nothing more than commercial enterprises and that a license to practice either profession is no more than a permit to make money by selling services, much as a fishmonger sells his wares. If that be the case, it is a doleful thought and the courts ought not accelerate the process.
Without belaboring the public policy basis for not enforcing the covenant here, I simply note that it is on that basis which this case should be decided. Because we are not free to approach the problem in that manner, I would decide the case on the ground that the plaintiffs have not sustained their burden of showing that injunctive relief is necessary here. Defendant is an ophthalmologist specializing in micro-glaucoma surgery, intraocular lens implants and the repair of retina breaks. Before defendant joined the clinic, patients seeking non-emergency eye care waited 90 days or more before they could see an opthalmologist at the clinic. Those who could not wait were referred elsewhere. The record indicates that after the defendant left the clinic, the ophthalmologist who replaced him was as busy as he wanted to be. Further, the clinic has referred patients to defendant, and he has assisted the clinic in surgery. It appears, therefore, that the clinic has all of the eye business which it can handle and does not need protection by way of enjoining defendant from practicing his specialty in Corvallis, or within 30 miles thereof, for a period of ten years. To so enjoin the defendant here would be to permit the doctors comprising the clinic to restrict the supply of ophthalmologists solely for their economic advantage. If, therefore, we are to treat this transaction as involving nothing more than a commercial business, the plaintiffs are not entitled to injunctive relief because they have not shown the need for that drastic remedy and because the covenant would be an unreasonable restraint of trade at common law.
*810It is curious that if .the plaintiffs had shown a clear need for injunctive relief here, they would, at the same time, have shown that there is a public need for an ophthalmologist in the Corvallis area with defendant’s qualifications. It seems apparent to me that to enjoin defendant under those circumstances would be injurious to the public interest, and that sounds very much like being in contravention of the public policy which ought to prevail here.
“Covenants binding a person not to exercise his trade or profession for a period of time in a particular area are contracts in restraint of trade disfavored at common law. Nonetheless, courts will uphold them where they are reasonably necessary to protect a legitimate interest of the person in whose favor they run, do not impose an unreasonable hardship upon the person against whom they are asserted, and are not injurious to the public interest. * * * ” North Pacific Lumber Co. v. Oliver, 286 Or 639, 649, 596 P2d 931 (1979).
Oregon State Bar Disciplinary Rule DR 2-108(A) provides:
“(A) A lawyer shall not be a party to or participate in a partnership or employment agreement with another lawyer that restricts the right of a lawyer to practice law after the termination of a relationship created by the agreement, except as a condition to payment of retirement benefits.”
Prior to the adoption of that rule in 1970, Ethics Opinion 127 (1963), condemned such agreements between lawyers as being “inappropriate” and in “bad taste.” Under the rule, they are not simply bad form; they are prohibited. It has been argued that since the court’s decision in McCollum v. Asbury, supra, in 1965, the public policy of the state has changed, as evidenced by DR 2-108(A). However, a covenant between doctors was approved in Hunter v. Straube, supra, where the court said: “Such clauses are typical of professional partnerships,” citing McCallum.
As the majority notes, the Oregon Medical Association has recognized that such covenants are ‘not generally conceived in the public interest.’ (55 Or App at at 805.)