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The Ethics of Noncompetes



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Description: Noncompetes are under siege, but lawyers have been exempt under Rule 5.6 of the Model Rules of Professional Conduct - a point often raised during legislative activities about noncompetes. But the restriction is not absolute. What does Rule 5.6 really mean? And, how do the confidentiality rules (Rule 1.6) and successive representation rules (Rule 1.9) affect the practical impact of Rule 5.6? · Unless and until noncompetes are eliminated generally, lawyers representing parties involved in noncompete matters face multiple potential traps for the unwary. Can you ethically draft a noncompete for a company with a nationwide workforce? Can you ethically draft a noncompete that is going to be used for its in terrorem effect? Can you - and should you - represent the new employer and the employee it just hired?
 
Presenter Bios 
 
Russell Beck is a business, trade secrets, and employee mobility litigator, nationally recognized for his trade secrets and noncompete experience. He was invited to the Obama White House to develop guidelines for the proper use of noncompetes, and has been cited as an expert on trade secrets and noncompetes by The New York Times, The Wall Street Journal, the White House, the Treasury Department, National Public Radio, the BBC World News Service, PBS Newshour, Le Monde, and many others.
 
Named a Lawyer of the Year in 2019 by Massachusetts Lawyers Weekly, and included in the Top 10 Lawyers in Massachusetts by Super Lawyers® in 2020, Russell and has over 30 years of experience as a complex business, trade secrets, and noncompete litigator, representing clients throughout the country.
 
Called “one of the foremost trade secret litigators in the country,” Russell is a recognized authority on the law of trade secrets, noncompetes, and employee mobility. In addition to revising language for the Massachusetts Uniform Trade Secrets Act, he wrote the law, wrote the book, and teaches the course on noncompetes in Massachusetts. His books include, Trade Secrets Law for the Massachusetts Practitioner (1st ed. MCLE 2019) and Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (6th ed., MCLE, Inc. 2021), and the course he created and teaches is Trade Secrets and Restrictive Covenants at Boston University School of Law.
 
Russell also writes and administers the award-winning Fair Competition Law blog and publishes and lectures frequently. He also prepared his firm’s widely used 50 State Noncompete Survey (the first of its kind and updated regularly since 2010) and the firm’s 50 State Trade Secrets Comparison Chart (also the first of its kind).
 
Russell is President of the Boston Bar Foundation. And, prior to founding the firm, Russell was a partner with Foley & Lardner LLP, where he was founder and chair of the Trade Secret/Noncompete Practice. Before that, he was a partner at Epstein Becker & Green, PC, and an associate at Reynolds Rappaport & Kaplan and at Simpson Thacher & Bartlett.
 
Peter Steinmeyer - When a highly valuable employee moves from one company to another, Pete Steinmeyer is an employer’s first call. Whether losing an employee to a competitor or hiring one away, companies trust Pete to respond at a moment’s notice with practical advice in plain English. Knowing he may only get one shot, he thrives in fast-paced, high-stakes environments while protecting a company’s most valuable data, trade secrets, and customer relationships. Pete diffuses stressful situations with humor and candor to help his clients decide what is truly
important before they act.
 
Outside of his employee mobility practice, Pete counsels employers on responding to a wide variety of workplace challenges, including discipline and discharge. He also leads investigations of alleged workplace misconduct, such as harassment and retaliation. Through close communication and meticulous analysis of the details, Pete uncovers potential problems early. And when the
facts show his client is in the right, he’ll fight to the end to prove it.
 
Pete is a thought leader who frequently writes and speaks about employment and workforce mobility issues. A sampling of his recent publications includes:
 
  • "Trade Secrets Law 25 Years After PepsiCo Disclosure Case" (coauthor), Law360 (Jan. 2021)
  • “Preparing for Non-Compete Litigation” (coauthor), Thomson Reuters Practical Law (Jan. 2021)
  • “Garden Leave Provisions in Employment Agreements” (coauthor), Thomson Reuters Practical Law (Oct. 2020)
  • “Non-Compete Laws: Illinois” (coauthor), Thomson Reuters Practical Law (Aug. 2020)
  • “Hiring from a Competitor: Practical Tips to Minimize Litigation Risk” (coauthor), Thomson Reuters Practical Law (May 2020)
  • "The Future of Force Majeure in Employment Contracts” (coauthor), Law360 (April 2020)
  • “Trade Secrets Litigation” (coauthor), Thomson Reuters Practical Law (Oct. 2019)
  • “Expert Q&A on Biometrics in the Workplace: Recent Developments and Trends” (coauthor), Thomson Reuters Practical Law (Feb. 2018)
  • “Developing a Plan for Employee Departures in California,” IPWatchdog (June 27, 2017)
 
He has been quoted in The Wall Street Journal, The National Law Journal, The Chicago Tribune, Law360, and other publications, and is an editor of Epstein Becker Green’s Trade Secrets & Employee Mobility Blog. Pete is also Managing Shareholder of Epstein Becker Green’s Chicago office. In his free time, Pete is an avid golfer constantly in pursuit of his next great shot. He’s also a history buff, a hiker, and a member of the hearing board for the Illinois Attorney Registration & Disciplinary Commission.
 
Erik Weibust - Companies of all sizes and in various industries call upon Erik for his practical and thoughtful advice—and his aggressive representation in high-stakes trade secret, noncompete, and commercial litigation.
 
In a climate of unprecedented employee mobility, information transfer, and competition, companies are frequently concerned with protecting their most valuable and important
intangible assets, including trade secrets and customer relationships. Many of the
world's leading pharmaceutical, biotech, medical device, technology, financial services,
staffing, and insurance companies look to Erik for thoughtful and practical advice
concerning how best to protect these assets from misappropriation by former employees,
ex-business partners, competitors, and hostile actors in the US and abroad, and to avoid
liability when hiring from competitors. When necessary, clients rely on Erik for aggressive
representation in litigation, where he has won substantial victories in court and at the
negotiating table, including broad-reaching injunctive relief and multimillion-dollar
payouts, and defeating claims of trade secret misappropriation, unfair competition, and
breach of restrictive covenant agreements.
 
In addition to his trade secret and restrictive covenant practice, Erik regularly
collaborates with attorneys across the firm to represent clients in commercial litigation
matters, including franchise, distribution, and real estate disputes, to name a few.
Similarly, clients appreciate that, by working with Erik, they can leverage Seyfarth's
national platform and full service offering to obtain practical advice in other areas of law
in which he does not practice, knowing that Erik will manage the relationship with
unparalleled transparency, accountability, responsiveness, and efficiency.
 
Erik's national litigation practice provides him with a unique and diverse perspective on
how courts and arbitrators, in a variety of jurisdictions, analyze relevant issues, keeping
him abreast of cutting-edge legal arguments, industry trends, and litigation strategies that
he brings to bear in all of his representations. Erik regularly publishes articles and
speaks locally and nationally about trade secret and restrictive covenant law, and he has
been quoted on these topics in publications such as the Washington Post and Law360.
Erik has substantial case management experience from the early stages of litigation
through the appeals process, including investigations, discovery, mediation, and trial and
arbitration, as well as litigation avoidance. He manages client expectations and budgets
practically and with transparency and accountability, using Seyfarth's broad suite of
cutting-edge technology and project management capabilities.
 
In 2017, Erik was named co-chair of Seyfarth Shaw's Boston office Litigation department. Prior to joining the firm, Erik served as a law clerk to the Honorable Peter W. Hall of the US Court of Appeals for the Second Circuit.



Practice Areas: Ethics & Professional Responsibility
Online Media Type: Audio
Production Date: 06/02/2021
Level: Intermediate
Category: Standard
Duration: 1 Hours, 2 Minutes
Online Format: On Demand

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Total Credits: 1
Specialty Credits: Ethics 1
Status: Reciprocal Credit Available
Expiration: 06/01/2024
Training Type: Online

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Speakers:
Russell Beck, Esq. - Beck Reed Riden LLP, Boston
Peter A. Steinmeyer - Member of the Firm, Epstein Becker Green; Chicago, IL
Erik Weibust - Seyfarth Shaw LLP Boston MA
Nicole Daly - Moderator
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