Solicitation of clients - legal advice

[FreelanceB2BPR]

Does anyone have any experience of employment contracts and whether a contract that prevents solicitation of clients from an old employer can be enforced if the client contacts you to do the work? I used to work for a PR agency and a client of theirs is unhappy with the work currently being provided by them and has asked me to take it on again independently of the agency. Any thoughts much appreciated.

[prh47bridge]

If the client contacts you that is not solicitation. It is only solicitation if you approach the client and try to persuade them to give you their business. Make sure you keep all correspondence just in case your old employer tries to do something about it but, in the circumstances you describe, they haven't got a leg to stand on.

[Amummyatlast]

In some case it is possible for the ex-employer to do this, but only if you have a non-dealing clause and it is reasonable. What does your contract say?

[FreelanceB2BPR]

prh47bridge that's what I think too but someone told me that even sending through a quote in response to their request counts as solicitation! It's a real shame because I feel like I'm running the risk of being penalised for having done a good job for both the client and the agency.

[FreelanceB2BPR]

Amummyatlast I don't have a non-dealing, only a non-solicitation clause. All logic tells me that I should be in the clear but without knowing what I could be liable for I don't want to expose myself to the risk. It's a 6 month clause, which runs out quite soon, so maybe I'll just wait til then and then send through the quote. Would be a bummer to miss out though, it's quite a sizeable project.

[flowery]

First thing they'd do to find out whether they can enforce it would be to seek legal advice, which would I'm sure advise them that the answer to that is no. In terms of actually taking some kind of legal action to try and enforce it, the costs of this in terms of fees, time etc would be only worth bothering with if they had a strong argument that clause was reasonable/necessary etc and if they could demonstrate a loss.

I can't see them actually going that far, so I wouldn't risk your own business because your ex employer might not be happy.

[prh47bridge]

someone told me that even sending through a quote in response to their request counts as solicitation

They are wrong. They are confusing non-solicitation clauses with non-dealing clauses.

A non-dealing clause means you can't do business with your ex-employer's customers even if they approach you. A non-solicitation clause means you cannot approach your ex-employer's customers with a view to doing business with them but you can do business with them if they approach you.

In this case the customer has approached you. That means you would not be in breach of the non-solicitation clause by giving them a quote.

Rather than relying on internet strangers, friends or acquaintances, you should seek advice from a lawyer specialising in employment law who can check the wording of the clause in your contract and advise you properly. The advice shouldn't cost much - probably much less than the value of this project.

[FreelanceB2BPR]

Thanks flowery and prh47bridge - I think you're right and I should double check it offline. All my instincts say it's ok but double checking is the sensible approach. Thanks for advice.