All work restriction agreements — or “non-competes” — unduly hurt workers, according to the Federal Trade Commission (FTC), which has banned noncompete enforcement nationally on April 23, 2024, subject to judicial review. Click here for more.
But there is one type of worker against whom the courts have never enforced a work-restriction agreement.
It’s not your primary care doctor, or cardiologist, or even your brain surgeon. Nope.
So which professional is immune from non-compete enforcement?
Your lawyer.
Drafting Your Will — The Same as Brain Surgery?
You have the absolute right to hire the professional of your choice, when it comes to drafting your last will and testament, for example, but no such right exists when it comes to your life or death medical treatment, such as open heart or brain surgery. According to Bloomberg:
There is one profession . . . that remains unaffected by noncompetes: lawyers. Under the American Bar Association’s Model Rule 5.6, an attorney cannot draft or enter into a noncompete agreement that “restricts the right of a lawyer to practice after termination,” except when retirement benefits come into play. The rationale is the sanctity of the attorney-client relationship.
But what about the relationship between doctors and patients? Apparently it’s less sacred. The American Medical Association’s ethics code says NCAs “can disrupt continuity of care, and may limit access to care,” and counsels doctors not to sign any that “unreasonably” restrict them. But it doesn’t forbid employers, including the hospitals and health-care systems that now employ about 40% of physicians, from using them.
Likewise, the First Amendment also recognizes the right to “peaceably assemble” (and congregate with others), but it’s not unique to “assembly” with your lawyer. No particular profession is referenced. So there’s no reason it would apply only in favor of “assembly” with lawyers, versus other professionals such as medical doctors.
The Real Reason For Your Right to Counsel of Your Choice
Having practiced non-compete law in Pennsylvania for 25 years, the undersigned has his own (somewhat cynical) belief as to why non-competes cannot bind lawyers. It would simply create too much strain on the courts. First, lawyers are constantly moving from one practice group to another, so the volume of non-compete enforcement claims against lawyers would be significant.
Secondly, the lawyer — knowing the legal system — is well positioned to challenge her non-compete, especially when it restricts her ability to earn a living. As a lawyer, she also know that the courts highly disfavor non-compete agreements, so she might be less likely to settle or honor a questionable work restriction clause, adding length of time to the likely litigation.
Third, non-compete enforcement already causes headaches for the courts. One reason is because only a judge (not a jury) can enforce a restrictive covenant, such as a non-compete. This causes a strain on the legal system, due to the labor-intensive aspect of resolving a restrictive covenant through the courts. For example, in each non-compete case, the party enforcing the agreement can seek two (2) hearings on the merits. First, the Plaintiff may seek an “emergency” injunction (to restrain the competition after a prompt hearing). Then, the Plaintiff can conduct discovery and seek a “permanent” injunction, via a second hearing.
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