Florida Estate Planning Lawyer Blog

Often after leaving your job your previous employer will try to hold you to the terms of a non-compete or non-solicitation agreement. An important part of determining the enforceability of the agreement is whether you can afford to defend a suit by the employer.
Although many non-compete agreements are not enforceable as written, courts will see if there is a way to reduce the scope by limiting the time, range of activities restricted, or the geographic restrictions if there is a legitimate business interest that the business is trying to protect.

There are many defenses to non-compete agreements and if you are willing to fight there is a chance you can settle or will a case. The best defense is to review and structure your agreement prior to executing it. It is important to have your agreement reviewed by a Florida Non-compete Attorney or a Florida Non-solicition Lawyer to determine what your chances of prevailing are.

This is the third part to a series on Protecting the Company's Privilege and the dangers of Email. Click here if you missed Part 1 and Part 2. Many Jacksonville Business Lawyers tell their clients that email can be very dangerous in the event of litigation. One should always be careful before pressing the send button.

Some of the things you should implement in regards to email are:

1) Provide training to employees teach them what the proper steps are to prevent inadvertent disclosures, spoliation, and other risks from occurring.

2) Always separate business advice from legal advise, use lead ins to make it clear that what is being provided is legal advise.

3) Indicate in the communications when the communication is for legal purposes or in anticipation of litigation.

4) Limit the distribution of any disclosure to avoid waiver of privileges.

5) Teach and train that any disclosure, even an unintended one, can be a waiver of the privilege.

6) Create, implement, and audit your firms document retention policy.

If you have question on your Document retention policy or how your firm is using email on an internal and external basis, be sure to have a Florida Business Lawyer or Attorney review and audit your procedures.

This is the second part to a series on Protecting the Company's Privilege. If you missed Part 1 it can be found here. Many Jacksonville Business Lawyers tell their clients that Blackberry devices are invitations for disaster because clients have their guard down. In the past people communicated with a short phone call, in a hallway conversation, at the water cooler. Today in house counsel and employees often communicate with text messages and emails. Often they are giving business and legal advice to employees. Sometimes both business and legal advice is given in the same conversation.

Only legal advice is privileged and the privilege can be lost if business advice is intermingled with the legal advise. This privilege only protects communications within the United States. In house counsel should be cautious when communicating with employees or offices in other countries. Some countries do not recognize a privilege for in-house counsel.

Some countries like France and Switzerland recognize no privilege at all for in-house counsel and Japan is in between France and the United States.

How can in-house counsel protect their emails?

• Be conscious of when you are giving legal and business advise. Sometimes you may want to send two emails.
• When sending out legal advie make sure its clear that it is legal advise. Start your emails with "You have asked for my legal advice on this issue". Teach your staff not to mass forward your messages, if the message is forwarded to one person to many, the privilege can be lost.
• Educate your staff that email is not destroyed by simply pressing the delete key. Blackberry devices create inadvertent documentation in situations where clients have their guard down. Don't send an email that you would not like made public.
• Selectively use Privileged & Confidential" notations on e-mail communications. This will help in the event you have to argue the meaning in front of a judge.

Continued in Part 3

As a Jacksonville Business Lawyer, I often run up against cases which involve unclean hands. This defense to a claim can limit or eliminate a potential recovery.

Definition: Unclean hands is a legal doctrine which is a defense to a complaint, which states that a party who is asking for a judgment cannot have the help of the court if he/she has done anything unethical in relation to the subject of the lawsuit. Thus, if a defendant can show the plaintiff had "unclean hands," the plaintiff's complaint will be dismissed or the plaintiff will be denied judgment. Unclean hands is a common "affirmative defense" pleaded by defendants and must be proved by the defendant. Example: Hank Hardnose sues Grace Goodenough for breach of contract for failure to pay the full amount for construction of an addition to her house. Goodenough proves that Hardnose had shown her faked estimates from subcontractors to justify his original bid to Goodenough.

Florida legal theories and defenses
The Doctrine of Unclean Hands: plaintiffs who seek a remedy in equity with “unclean hands,” which does not require the commission of a crime but only acts “condemned by honest and reasonable” persons, will be denied relief. Roberts v. Roberts, 84 So. 2d 717, 720 (Fla. 1956).

Defenses
1. Unclean Hands: One who seeks the aid of equity must do so with clean hands. Bradley v. Health Coalition, Inc., 687 So.2d 329 (Fla. 3d DCA 1997). This rule applies to the State when it becomes a litigant. Valdez v. State, 194 So. 388, 394 (Fla. 1940).
2. Totality of the Circumstances: In deciding whether to issue an injunction in a particular case, a trial court must consider the totality of the circumstances and determine whether injunctive relief is necessary to achieve justice between the parties. This well-settled maxim of equity jurisprudence is summarized in §936 of the Restatement (Second) of Torts (1979): The appropriateness of the remedy of injunction against a tort depends upon a comparative appraisal of all of the factors in the case, including the following primary factors:

(a) the nature of the interest to be protected,
(b) the relative adequacy to the plaintiff of injunction and of other remedies,
(c) any unreasonable delay by the plaintiff in bringing suit,
(d) any related misconduct on the part of the plaintiff,
(e) the relative hardship likely to result to defendant if an injunction is granted and to plaintiff if it is denied,
(f) the interests of third persons and of the public, and
(g) the practicability of framing and enforcing the order or judgment.

Davis v. Joyner, 409 So.2d 1193, 1195 (Fla. 4th DCA 1982).

If you feel that you are dealing with a case which involves Unclean hands, you should discuss the facts and circumstances with a Florida Business Lawyer.

As a Jacksonville Business Lawyer, I often run up against cases which involve unclean hands. This defense to a claim can limit or eliminate a potential recovery.

Definition: Unclean hands is a legal doctrine which is a defense to a complaint, which states that a party who is asking for a judgment cannot have the help of the court if he/she has done anything unethical in relation to the subject of the lawsuit. Thus, if a defendant can show the plaintiff had "unclean hands," the plaintiff's complaint will be dismissed or the plaintiff will be denied judgment. Unclean hands is a common "affirmative defense" pleaded by defendants and must be proved by the defendant. Example: Hank Hardnose sues Grace Goodenough for breach of contract for failure to pay the full amount for construction of an addition to her house. Goodenough proves that Hardnose had shown her faked estimates from subcontractors to justify his original bid to Goodenough.

Florida legal theories and defenses
The Doctrine of Unclean Hands: plaintiffs who seek a remedy in equity with “unclean hands,” which does not require the commission of a crime but only acts “condemned by honest and reasonable” persons, will be denied relief. Roberts v. Roberts, 84 So. 2d 717, 720 (Fla. 1956).

Defenses
1. Unclean Hands: One who seeks the aid of equity must do so with clean hands. Bradley v. Health Coalition, Inc., 687 So.2d 329 (Fla. 3d DCA 1997). This rule applies to the State when it becomes a litigant. Valdez v. State, 194 So. 388, 394 (Fla. 1940).
2. Totality of the Circumstances: In deciding whether to issue an injunction in a particular case, a trial court must consider the totality of the circumstances and determine whether injunctive relief is necessary to achieve justice between the parties. This well-settled maxim of equity jurisprudence is summarized in §936 of the Restatement (Second) of Torts (1979): The appropriateness of the remedy of injunction against a tort depends upon a comparative appraisal of all of the factors in the case, including the following primary factors:

(a) the nature of the interest to be protected,
(b) the relative adequacy to the plaintiff of injunction and of other remedies,
(c) any unreasonable delay by the plaintiff in bringing suit,
(d) any related misconduct on the part of the plaintiff,
(e) the relative hardship likely to result to defendant if an injunction is granted and to plaintiff if it is denied,
(f) the interests of third persons and of the public, and
(g) the practicability of framing and enforcing the order or judgment.

Davis v. Joyner, 409 So.2d 1193, 1195 (Fla. 4th DCA 1982).

If you feel that you are dealing with a case which involves Unclean hands, you should discuss the facts and circumstances with a Florida Business Lawyer.