Abstract
Noncompete agreements in the employment context have become increasingly controversial. For almost a decade, there has been an ongoing national debate about their enforceability and legality. This debate initially culminated in a proposed, and ultimately final, rule by the Federal Trade Commission (FTC) to completely ban noncompete agreements. Despite increased state and federal regulation of noncompete agreements, workers still incur detrimental consequences due to restraints imposed by the agreements. One reason workers continue to endure negative effects from noncompetes is that some employers disregard state statutes governing noncompete agreements and include unenforceable provisions in their employment contracts. As a result, these unenforceable provisions intimidate uninformed workers and limit their alternative job opportunities to the benefit of the employer.
Although there have been many calls to bring actions against employers who include facially unenforceable noncompete provisions, this Comment delves to the root of the problem: the attorneys who draft the provisions. This Comment’s proposed solution identifies three Model Rules of Professional Conduct, rules 1.2(d), 4.1, and 8.4(c), to serve as the foundation to govern an attorney’s ethical and professional duty in drafting contracts. As the only profession to completely govern itself, there should be a higher ethical standard and level of integrity surrounding the drafting of contract provisions, specifically noncompete terms. Thus, this Comment proposes a new rule and application of Model Rule 4.1 through a judicial holding when an attorney drafts and includes invalid noncompete agreement provisions in an employment contract.
Recommended Citation
Nicole A. Faria,
Applying the Model Rules of Professional Conduct to Attorneys Who Draft Unenforceable Noncompete Agreements,
74
Emory L. J.
449
(2024).
Available at:
https://scholarlycommons.law.emory.edu/elj/vol74/iss2/4