Harpers Ferry, WV asked in Contracts and Employment Law for West Virginia

Q: How legally binding is a non-compete clause if a client wants to continue services after terminating your contract?

I am a Licensed Professional Counselor working as an Independent Contractor for a small private practice. I am planning on starting my own practice in the near future and have a handful of long-term clients that the current practice will not be able to absorb. If the clients want to continue with me, what are my options to avoid getting sued?

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2 Lawyer Answers
Kasim Carbide
Kasim Carbide

A: The answer to your questions will depend on (1) what West Virginia courts consider enforceable non-competition provisions, (2) the specific facts and circumstances of your case, and (3) the language of the non-compete as well as any other restrictive covenants (clauses that forbid you from doing something) contained in your Independent Contractor Agreement.

Typically, employers wants to balance making non-compete restrictions as broad as possible to protect the employer's interests, because if not courts interpreting such a provision can deem it over broad and unenforceable and thus unreasonable.

Generally, West Virginia Courts enforce non-competition agreements that are (1) supported by consideration, (2) ancillary to a lawful contract, and (3) reasonable and consistent with the public interest. Without reviewing your Agreement and finding out more information it is difficult to provide you with a specific answer. Reaching out to a licensed West Virginia contracts attorney would be your best bet to review your specific contract language and provide you with the most accurate response.

J. Tanner James
J. Tanner James
  • Fairmont, WV
  • Licensed in West Virginia

A: Firstly, judicial enforcement of non-compete agreements (often called "Covenants Not to Compete" in WV) is heavily fact-dependent, with consideration given to the reasonableness of the agreement, the legitimate interests of an employer seeking protection, the adverse impact on the employee, and public policy concerns. I would need more information to provide a competent evaluation of these factors in your case.

Secondly, avoiding suit is another subject entirely. Absent some statute or other brightline rule that prohibits competitive restrictions in your industry, the enforceability of any given non-compete is difficult to predict. As a result, a non-compete provision that you consider to be unfair is likely considered by your employer to be very fair. Due to this inherent conflict, there is no guaranteed way to "avoid getting sued."

It will come as no surprise that the recommended course of action is to retain a WV attorney so they may investigate all pertinent facts and give you an informed legal opinion.

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