Reasons for Counseling Reasonableness in Deploying Covenants-Not-to-Compete in Technology Firms

20 Pages Posted: 5 Nov 2015 Last revised: 13 Oct 2016

Date Written: November 3, 2015

Abstract

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 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 Rules seek to promote.

Keywords: legal ethics, client counseling, professional responsibility, legal education, intellectual property, trade secrets, non-competes

Suggested Citation

Gomulkiewicz, Robert W., Reasons for Counseling Reasonableness in Deploying Covenants-Not-to-Compete in Technology Firms (November 3, 2015). Lewis & Clark Law Review, Vol. 20, No. 2, Pp. 477-95 (2016), University of Washington School of Law Research Paper No. 2015-37, Available at SSRN: https://ssrn.com/abstract=2685904

Robert W. Gomulkiewicz (Contact Author)

University of Washington - School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

HOME PAGE: https://www.law.washington.edu/directory/profile.aspx?ID=74

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