Can You Break a Noncompete Agreement?

Leigh Page

Disclosures

November 19, 2018

In This Article

You'll Face a Great Deal of Uncertainty

Many new physicians who are employed are hemmed in by restrictive covenants. One quarter of new physicians leave their jobs in the first 3 years of employment—the amount of time that restrictive covenants are typically in force, according to the AMA report.

But it doesn't seem that many of these young physicians fight their covenants. The legal cases tend to involve older physicians in employment or partnerships.

If you still want to break your restrictive covenant, first hire an attorney experienced in contract law for physicians and see what your options are, says William J. Cantrell, an attorney at Cantrell Law in Tampa, Florida.

When seasoned attorneys examine the specific wording, your own particular circumstances, and the law in your state, they can get a good idea of whether you can break a covenant, Cantrell says. But no attorney, he says, can know for sure whether you can win.

Before you quit your job and find a new one, you would want to have a high degree of certainly that you wouldn't be sued and forced to give up your new job. But you can never get that kind of certainty at the start.

"There are no guarantees that you can break a covenant," Adler says. "Any lawyer who says it's easy to break a covenant is giving you bad advice." The reasons why?

  1. Almost all of these cases are settled before they ever go to trial, so attorneys have very few judges' decisions to guide them, Adler says. "In my 20 years of doing these cases, only about one to three have ended up in court," she says. "With so few cases going through the system, you don't know for sure how the courts will react."

  2. When judges do make decisions, they have a great deal of leeway. This can mean that no two judges would rule the same on a particular case, contract attorneys say. In Florida, for example, some judges are "pro-employee and some are pro-employer," according to one account.[2]

And yet many physicians win their cases, albeit on appeal many times. Perhaps owing to this high degree of uncertainty, both sides tend to fight these cases with a great deal of bravado, as if playing a game of chicken.

For example, Jonathan Pollard, an attorney in Fort Lauderdale, Florida, devoted a recent YouTube video[3] to the strategy of suing former employers before they can sue you for breaking your covenant.

"You are metaphorically punching them in the face," he says in the video. "The plaintiff's law firm is not expecting that. You gain the element of surprise." However, he adds that this strategy is recommended only for "a small number of clients who are in a very strong position."[3]

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