One of Dave’s colleagues at Foley Hoag explained it to me thusly:

It’s actually built into our rules of professional conduct, rather than a Massachusetts statute (Rule 5.6: A lawyer shall not participate in offering or making: a partnership or employment agreement that restricts the right of a lawyer to practice after termination of the relationship…”). It’s very similar to a model rule promulgated by the American Bar Association. The comment to the rule states that such a restriction “not only limits [lawyers'] professonal autonomy but also limts the freedom of clients to choose a lawyer.” There is an exception for sale of a law practice.

Interesting, don’t you think, that attorneys can enjoy the financial rewards of representing companies enforcing non-competes, or the financial rewards of defending employees who are bound by them — but that the attorneys themselves have no worries about non-competes…?

Have you thought about ways to quantify the added value of having the non-compete in place?

With resect to your second question, as you noted in your post, noncompetes do have some harrassment value. I think the standard of proof is the same in all these contracts, but violations of nonsolicits, nonhires, etc. are, I think, likely to be more clear cut and therefore easier to avoid and less likely to be asserted in the absence of a clear violation. Because the definition of “competition” in these agreements is often not crisp, violations can be asserted when the evidence is not perfectly clear. Law suits are by their nature expensive and unpleasant. The deck isusually stacked against the potential employee because the former employer usuallly has more resources. As you point out, often the threat of a suit is enough to discourage hiring of an engineer or other person.

1. If employers can get most of what they need from non-competes then why are so many of them so reluctant to drop them?

2. I’m all for non-solicits, non-disclosures, non-hires, invention agreements, etc. An employer can/should go after employees who are breaking these agreements. However, the burden of proof is higher, isn’t it? So, doesn’t it all come down to how easy it is to go after an employee based on a non-compete agreement just because of the fear of the “inevitable breakage” of these other agreements?