Talking With Your Attorney ( Part 3 of 3)

This brings us to the final phase of this series – meeting with your attorney. Having worked with many employees seeking to continue to work in their chosen field, but faced with a restrictive covenant, the initial meeting with the clients often runs the gamut of reactions

At the one extreme is the executive who says something like this: “I heard these non-competes are unenforceable. Is this true?” – hoping I will confirm this rumor and our meeting will be short and precise.

The middle ground might be something like “I’ve got this great offer, I know I have this restrictive covenant, but my old employer did X, Y, and Z to me. Why should I give up my future livelihood for such an awful employer?”

At the other extreme might be the clients we never meet –the employees who, regardless of their situation, have a written document by which they will abide– no questions asked.

When (or if)you speak to your attorney about a restrictive covenant, do not expect to get firm, certain answers. As an executive at a business, you may have become accustomed to using contracts to create certainty. But, as we know from the prior two installments of this series, there is little certainty in this area of the law, regardless of what is on paper.

Each restrictive covenant can be examined anew by a court. These agreements, while often very clear in word, may not reflect a protectable business interest allowing for enforcement. Further, courts can reform these restrictive covenants. If the contract says a two-year period of non-competition, but the protectable business interest only warrants one year, a court can “blue pencil,” the contract, making two years one.

Do not be surprised if your lawyer does not give you a clear, bright path that your case will follow. Expect the lawyer to get as much information from you about your employment situation, including the work you did for your former employer, as well as your employer, including its overall business, and business plan, and what your former employer stands to lose if you compete. Based on these facts, your lawyer is going to give you his or her best assessment of your situation. But lawyers are not the judge or jury of the facts, so it will be difficult for your lawyer to tell you what you should do, as all they can do is offer a prediction.

This is why it is important to choose an attorney that has experience in the court where your case will likely occur. Judges have widely different reactions to restrictive covenants. Having an attorney with experience in front of the judges who will hear your case gives you the ability to anticipate how a judge might react.

The other aspect that bears investigation is settlement. Your former employer may have no interest in settling. Other employers may have no interest in seeing you unemployed, but have a greater interest in preserving customer relationships you could threaten. There are plenty of scenarios in between, including monetary buyouts of your non-compete or a simple reduction in the time and/or geography. Regardless, settlement is always at least worth exploring.

In the end, as an executive, you may expect certainty in contracts, and you may expect efficient, relatively brief meetings with your attorneys, but these types of cases require a close review of detailed facts in order to give appropriate advice. An experienced lawyer, familiar with this area of the law, is critical

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