But look, I\u2019m going to give it to you straight. And you might be surprised by my answer. As you\u2019ll see, I\u2019m going to explain why sometimes<\/em> you may be wasting your money on non-compete advice from a lawyer.<\/p>\n First, let\u2019s define the parameters. There are four common situations where you may need legal advice about a non-compete.<\/p>\n First, let\u2019s say you own a business. You\u2019re thinking it would be a good idea to have new hires sign non-competes. Or maybe you just got burned by an employee who ran off with key customers, so you want to have all your remaining sales force sign non-competes. Or you could be trying to sell the business.<\/p>\n Should you hire a lawyer to draft the non-compete for you, or try to do it yourself?<\/p>\n This one is pretty much a no-brainer.<\/p>\n You see, non-competes are tricky. That\u2019s because there are public policy limits on non-competes. You can\u2019t just draft the non-compete to say whatever you want. So you need a lawyer. (If you really want to nerd out on this you can check out\u00a0Top 15 Drafting Considerations for Texas Non-Competes<\/a> or Drafting the Bullet-Proof Texas Non-Compete<\/a>.)<\/p>\n A slightly harder question is whether you need a lawyer who specializes in non-compete law to help you draft the non-compete.<\/p>\n That\u2019s a harder one. Non-compete law isn\u2019t that <\/em>complicated (again, a confession against interest). The basic requirement is that the scope of a non-compete must be reasonable. Any competent business lawyer who takes the time to look up the requirements for a non-compete can probably draft a decent one.<\/p>\n And yet.<\/p>\n Trust me, I see a lot<\/em> of poorly drafted non-competes in my practice. And many of them were written by lawyers.<\/p>\n I think these lawyers often make the same mistake the clients make. They think the goal is to make the non-compete as airtight as possible. Make it so there\u2019s no way for the employee to get around it.<\/p>\n But this is precisely the wrong instinct when it comes to writing a non-compete. The counter-intuitive truth is that you usually want to make the non-compete as narrow<\/em> as reasonably possible. That\u2019s because a narrow non-compete is more likely to be an enforceable <\/em>non-compete.<\/p>\n And ideally, you want the lawyer who drafts the non-compete not only to have experience drafting non-competes but also experience litigating<\/em> non-competes. Because there\u2019s nothing like litigation to teach you what not<\/em> to do when drafting.<\/p>\n So, in this first scenario where the client is the company that needs a non-compete drafted for employees to sign, it\u2019s almost always a good idea to hire a lawyer to do it. Preferably a lawyer who has experience litigating non-competes.<\/p>\n But what if you\u2019re the employee, not the employer?<\/p>\n In the next common situation, the company offered you a job, but they want you to sign a non-compete. If you\u2019re lucky, they propose the non-compete before you accept the job offer. If you\u2019re less fortunate, like most people, you accept the job offer first.<\/p>\n That doesn\u2019t really seem fair, does it? But what\u2019re you gonna do.<\/p>\n Some people will think about calling a lawyer. Is that a good idea?<\/p>\n As a general rule, yes. I\u2019m never going to tell somebody, \u201clook, it\u2019s a total waste of your money to get legal advice about the effect of the agreement you\u2019re being asked to sign.\u201d<\/p>\n But I\u2019m also going to be realistic. In the new-hire situation, spending money on legal advice about a non-compete could end up being a waste of your money.<\/p>\n It really depends on the answer to one question: can you afford to walk away from this job?<\/p>\n There are two types of people who can usually walk away. One is Peter President. Peter is a high-ranking executive who got paid a lot of money at his last job. If he doesn\u2019t like the cut of the non-compete\u2019s jib, he could just enjoy his sailboat for a year and then look for another job.<\/p>\n Or he might do what I sometimes advise high-ranking executives: tell the company \u201cfine, I\u2019ll sign a two-year non-compete, if it\u2019s conditioned on you paying me two years of severance.\u201d If Peter\u2019s going to sit out of the industry for two years, he should be compensated for it accordingly. (But don\u2019t throw this at me if I represent the company in the negotiation.)<\/p>\n Another type who can afford to walk away from a job is Rita Rainmaker. Rita has a big book of business developed over the last 15 years. She brings in seven figures in revenue annually. She\u2019s got some leverage.<\/p>\n But most employees are not Peter President or Rita Rainmaker. Most are like Sally Sales. Sally has about a dozen loyal customers, but the revenue she brings in isn\u2019t going to make or break the company. And Sally can\u2019t go more than a couple months without any income.<\/p>\n So when the company presents Sally with the standard-form Confidentiality, Non-Solicitation, and Non-Competition Agreement its expensive lawyers drafted, it\u2019s probably a take-it-or-leave-it proposition. She\u2019s free to refuse to sign\u2014in theory. But let\u2019s be real. Sally doesn\u2019t have a choice.<\/p>\n Of course, she can hire a lawyer to review the non-compete, tell her what it means, and draft a revised version to propose to the company. And sometimes people hire me to do just that.<\/p>\n But guess what. How often do you think the company accepts my tracked changes?<\/p>\n Hint: it\u2019s about as often as my Dallas Cowboys have won a playoff game over the last 20 years (oh, the truth hurts).<\/p>\n That\u2019s right. Most of the time the company will say \u201csorry, this is our standard form, approved by our lawyers, we can\u2019t make any changes.\u201d<\/p>\n In that case, my client may not feel great about the money she just spent on my advice about the proposed non-compete. So consider this fair warning.<\/p>\n People also like to get advice when it looks like there could be a lawsuit over the non-compete. This one applies equally to the employer and the employee.<\/p>\n And yes, of course, if you want to know what’s likely to happen in a non-compete lawsuit, it makes sense to pay a lawyer who has experience with non-compete lawsuits.<\/p>\n But before you spend that money, let me just warn you that the answer may not be very satisfying.<\/p>\n I can walk you throw all the twists and turns of Texas non-compete law, including the law on injunctions, and I’ve got tons of blog posts and YouTube videos on this.<\/p>\n But at the end of the day, my bottom line practical advice is usually going to be the same: it depends on the judge.<\/p>\n What will the trial court judge do if there’s a lawsuit over the non-compete? Will the judge sign a court order prohibiting the employee from working for a competitor? Usually that’s the key question.<\/p>\n The short, final answer is that the judge will do what the judge thinks is fair. And if the losing party appeals, they will probably lose the appeal.<\/p>\n That’s all the non-compete law you really need to know. If you want to pay me for it, that’s great, but that’s probably going to be my bottom line answer.<\/p>\n In the fourth scenario, you\u2019re the employee, and you just quit or got fired. The company wants you to sign a severance agreement that includes a non-compete. In that situation, is it a good use of your money to hire a lawyer to review the proposed agreement?<\/p>\n This one really depends. And it depends primarily on how badly you need the severance money the company is offering, if any.<\/p>\n Assuming your employment was at-will, as it usually is, and assuming you don\u2019t already have an agreement requiring the company to pay severance, keep in mind that the company doesn\u2019t have to pay you anything, other than compensation you\u2019ve already earned. That\u2019s the bad news.<\/p>\n The good news is that unless you previously agreed to it, you\u2019ve got no legal obligation to sign a non-compete on your way out.<\/p>\n Now you can see why the key question is how badly you need the money.<\/p>\n If you really need the proposed severance money just to stay afloat, spending money on legal advice may not be the best thing to do.<\/p>\n I can tell you the effect of the non-compete agreement the company is asking you to sign in exchange for the severance, and I can revise it to make it less one-sided, but in many cases the company will say \u201csorry, take it or leave it.\u201d<\/p>\n Conversely, if you really don\u2019t need the money at all, you may not need any legal advice. You don\u2019t need hire a lawyer to tell you how to say \u201ctake your non-compete and shove it.\u201d You can just say nope.<\/p>\n But if you\u2019re somewhere in the middle\u2014it would be nice to have the proposed severance money, and you want to leave on good terms\u2014it probably makes more sense to get some legal advice about the proposed agreement.<\/p>\n And if you have the ability to walk away from the proposed severance money, that may give you enough leverage to get the company to seriously consider your lawyer\u2019s revisions to the non-compete.<\/p>\n And that\u2019s good for people like me. I\u2019ve got another kid going to college in a few years.<\/p>\n ________________________<\/p>\n These are his opinions, not the opinions of his firm or clients, so don\u2019t cite part of this post against him in an actual case. Every case is different, so don\u2019t rely on this post as legal advice for your case. <\/em><\/p>\n <\/p>\n The post Should You Pay a Lawyer for Non-Compete Advice?<\/a> appeared first on Zach Wolfe Law Firm<\/a>.<\/p>\n\n","protected":false},"excerpt":{"rendered":" Ok, I know what you\u2019re thinking. \u201cDon\u2019t you have a vested interest in the answer, Wolfe?\u201d Yes, clients often pay me for advice about non-competes. It would only be a slight exaggeration to say I\u2019ve paid for my daughter\u2019s college by charging people for advice about non-competes. So it would be somewhat self-serving for me […]<\/p>\n","protected":false},"author":1,"featured_media":159133,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[97],"tags":[11282,13466,23898,11007],"dealstore":[],"offerexpiration":[],"class_list":["post-159132","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-legal","tag-advice","tag-lawyer","tag-noncompete","tag-pay"],"yoast_head":"\nScenario 1: You Are the Employer<\/strong><\/h3>\n
Scenario 2: You Are the New Employee<\/strong><\/h3>\n
Scenario 3: There May Be A Lawsuit<\/strong><\/h3>\n
Scenario 4: They Want You to Sign a Non-Compete on the Way Out<\/strong><\/h3>\n
![\"\"](\"https:\/\/fiveminutelaw.com\/wp-content\/uploads\/2020\/05\/Head-Shot-Casual-300x240.jpg\")
Zach Wolfe (zach@zachwolfelaw.com<\/a>) is a Texas trial lawyer who handles non-compete and trade secret litigation at Zach Wolfe Law Firm (zachwolfelaw.com<\/a>). Thomson Reuters named him a Texas \u201cSuper Lawyer\u201d\u00ae for Business Litigation in 2020, 2021, and 2022. <\/em><\/p>\n