Not “illegal,” just often not “enforceable.” Let me explain…
Let’s say you have a non-compete clause in an associate contract. You leave the practice and start your own. The other doctor thinks you’ve violated the non-compete. He will get an attorney and will most likely attempt to get an injunction against you, to stop you from practicing until the issue can be settled. Yes, he can do that, to protect himself from further “damage” by your “stealing” his patients.
When the issue gets to court, the judge or jury will review it based on the principle of “restraint of trade.” Is this clause so restrictive that it’s unreasonable, that it unreasonably prohibits you from practicing chiropractic. An example of a VERY unreasonable non-compete would be 150 miles and 10 years. Way out of bounds! But most cases are not so obvious. What is “unreasonable” restraint of trade depends on the area. What is unreasonable in a large city might not be unreasonable in a rural area. It’s very difficult for a court to determine what’s reasonable. So it’s non “illegal,” it’s just very difficult to enforce a non-compete clause. And, of course, while the whole thing is being sorted out, you may not be able to practice.
The best advice I can give you is this: If you are associating with someone and want to leave, set up your practice far away; don’t go ANYWHERE near that practice. And make sure your advertising doesn’t reach the other doctor’s patients. This could be considered “indirect” solicitation and can cause the other doctor to come after you. I usually urge people not to go into an associate agreement if they are planning on practicing anywhere nearby, just for this reason.
I will be writing an article soon on what I call the “principle of abundance” – why are we so concerned with other doctors stealing patients, when there are plenty to go around? Another day…another post.
Jean
