Robert W. Gomulkiewicz, Reasons for Counseling Reasonableness in Deploying Covenants-Not-to-Compete in Technology Firms, 20 Lewis & Clark L. Rev. 477 (2016), https://digitalcommons.law.uw.edu/faculty-articles/64
Lewis and Clark Law Review
covenants-not-to- compete, Model Rules of Professional Conduct
Some states ban the enforcement of employee covenants-not-to-compete (“non-competes”) but most enforce them to the extent they are reasonable. As such, “reasonableness” provides the touchstone for enforceability analysis. The academic literature commenting on the reasonableness of non-competes is large and growing. Scholars usually direct their comments to judges, legislators, and other scholars.
Rarely do they address practicing lawyers. That omission is particularly unfortunate because practicing lawyers, more than judges, legislators, and scholars, can affect whether non-competes work both fairly and effectively. This Article fills that void by providing reasons, directed to practicing lawyers, for deploying non-competes in a reasonable manner. It also addresses how the American Bar Association’s Model Rules of Professional Conduct and norms of lawyering that flow from them often set a tone for client counseling that makes it difficult to counsel clients toward reasonableness.
The Article argues that failing to effectively counsel clients toward reasonableness, however, may actually amount to professional irresponsibility rather than the professional responsibility that the Model Rules seek to promote.