Did you hear the one about the lawyer and the non-compete agreement?

Have you ever lived in a cage
 Where you live to be whipped and be tamed
 The Cage, lyrics by Bernie Taupin
© 1969 Dick James Music
Did you know that lawyers cannot be compelled to sign non-compete agreements?  Yup, they are prohibited by both the ABA (American Bar Association) and the Virginia Bar.  

If you are not a lawyer you probably don’t care about this, and you don’t need to, but if you are a lawyer, you might want to make a note of this in case it ever comes up, because the same rule applies in every state except perhaps TexasYou should also be aware that the rule applies to in-house counsel as well.  Read on.

I’ll bet no one ever asked Atticus Finch to sign a non-compete agreement.

Virginia Rule 5.6 says:



A lawyer shall not participate in offering or making:
(a)   A partnership or employment agreement that restricts the right of a lawyer to practice after termination of the relationship . . .
The comments explain the reasoning behind the rule:
An agreement restricting the right of lawyers to practice after leaving a firm not only limits their professional autonomy but also limits the freedom of clients to choose a lawyer.
The comments also mention “the public policy favoring client’s unrestricted choice of legal representation.”  That seems pretty straightforward to me.  The ABA version of the rule is  ABA 5.6.
And what about in-house lawyers?  The Virginia Bar addressed this in Legal Ethics Opinion 1615 issued in 1995.  The Bar responded to a hypothetical in which a corporation was going to hire an individual as General Counsel. The corporation wanted the lawyer to sign a non-competition and confidentiality agreement in which the lawyer would agree not to work in-house for a competitor for one year.
The Virginia Bar responded that “the non-competition portion of the agreement is improper.”  
What about the confidentiality portion of the agreement?  The Bar didn’t care for that either:
The committee recognizes the corporate employer’s concerns as to the preservation of its confidential and proprietary information.  However, under the Code of Professional Responsibility [the predecessor to the current rules) protection of client confidences and secrets is assured.  Therefore, the committee believes that the portion of the agreement which requires the attorney not to disclose confidential and proprietary information is superfluous

If you look at the rule above, it says that a lawyer shall not participate inoffering or making such an agreement. That says to me that the corporation should not even ask the lawyer to sign such a document, let alone try to enforce it. 
 So, if it ever comes up, you now know what the deal is.  It seems to me that if the company you work for tries to get you to sign one anyway, that tells you something about the level of integrity of the company and its lawyers.

The inspiration for today’s parody comes from Elton John’s “Teacher I Need You”

I was sitting in the boardroom
Trying to look invisible
In case the VP looked at me
He was bald and he was mean
He’s a nightmare not a dream
And I know he has it in for me
He’s a prima donna diva
Pounding on the table
While the minions sit and cringe
He’s the inspiration
For my constipation
And I want to throw a brick at himOh VP I loathe you
And I’m not alone
You make people hate to
Answer when you phone
You give me palpitations
And migraines, yes it’s true
I just want to come out and say
VP I, VP I, VP I, VP I loathe youHe loves his special parking
The free gas and the driver
Just to make sure he gets home
He gets a hotel suite
And a first class seat
Yet nothing’s in that gleaming dome

So I’m sitting in the boardroom
Watching how he sucks up
To the CEO and yet I know
He’s a first class jackass
And a blowhard fat ass
And yet I’ll be the one to go

(c)  2014 Renata Manzo
Any resemblance to any person, living or dead, is entirely coincidental


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