Page 9 - SOUTH FLORIDA HOPSITAL NEWS APRIL 2022

Physician Non-Compete Agreements: A Necessary Protection

or an Unnecessary Restriction and Impairment on Patient Care?

Depending on which side mate, enforceable, and pret- al practice, or extraordinary or specialized after leaving a firm not only limits their
you ask (i.e., the employer ty commonplace in the training) . professional autonomy, but also limits the
or the individual physician), healthcare setting. While there are sentiments at the federal freedom of clients to choose a lawyer” and
you may hear two different The key omission from level to outlaw non-competes altogether that “severance agreements, on the other
perspectives on the legitima- these perspectives is and in Florida, Governor DeSantis did hand, that contain punitive clauses, the
cy and necessity of non- whether these agreements pass a law in 2019 (Fla. Stat. 542.336) effect of which are to restrict competition
competition agreements for impair patient care? which prohibits certain forms of restrictive or encroach upon a client’s inherent right
physicians. Many physician employ- covenants in the healthcare setting (i.e. to select counsel, are prohibited.”
On the employer side, the ment agreements also con- where there is a medical “specialty” Further, Rule 4.5-8 (b) (which is the
argument is that the business tain non-solicitation provi- involved and an entity that essentially rule which governs procedures for lawyers
provides specialized training sions which typically restrict employees all physicians in that specialty leaving law firms) states that “Clients have
on its unique method of pro- the physician from “solicit- within the same county), the vast majority the right to expect that they may choose
viding patient care and med- BY ADAM D. KEMPER, ing” former patients of the of healthcare settings are not covered by counsel when legal services are required
ical services, spends a lot of ESQ. practice for a period of time this new statutory limitation. and, with few exceptions, nothing that
money on marketing and post-employment (i.e., typi- As such, medical practice owners and lawyers and law firms do affects the exer-
building an infrastructure to generate cally between 1-2 years). employers in healthcare can and still enter cise of that right.”
leads for new patients, builds relationships Some non-solicitation provisions are into restrictive covenant agreements as a Thus, the Florida Bar quite clearly takes
with its patients and referral networks, written in such a way to prevent (or at regular part of their employment process. into account client interests in that pro-
compensates its physicians very well, and least deter) the physician from servicing or Interestingly, for attorneys (in the State hibits agreements which in any manner
because it wants to retain its physicians accepting such patients altogether for an of Florida), non-competition agreements interfere with the rights of a lawyer to
and deter them from joining competitors. extended period of time. are prohibited as the Florida Bar rules have practice and/or which affect client rights to
Healthcare business owners understand- Thus, as a practical matter, if a physician clear prohibitions against restricting a choose counsel when legal services are
ably do not want to spend all the time and leaves a medical practice, patients of such lawyer’s right to practice and a client’s right required.
money to train physicians and/or to gener- physician will be left with the option of to choose its attorney. For healthcare, the question becomes
ate patients for the physicians to wind up working with a new physician from the Notably, Rule 4-5-6 of the Rules why is there a different standard for physi-
“stealing” the medical practice’s business same medical practice or trying to contin- Regulating the Florida Bar states that a cians and patients?
model and/or patients. ue receiving service from the departing lawyer shall not participate in offering or Are healthcare practitioners overlooking
From a physician’s perspective, they physician at the risk of the departing making: patient care when it comes these agree-
want what everyone wants - freedom to do physician potentially violating his or her (a) a partnership, shareholders, operat- ments?
what they want, where they want, and in agreement. ing, employment, or other similar type of Patients will ultimately have to decide
an unrestricted fashion. Physicians spend In Florida, restrictive covenant agree- agreement that restricts the rights of a what is best for them through their votes
countless hours handling challenging ments are governed by Florida Statutes lawyer to practice after termination of the and actions.
patient scenarios in unique settings and (Chapter 542) and can be enforceable so relationship, except an agreement con-
would like the flexibility to consider alter- long as the provisions are supported by at cerning benefits upon retirement; or
native settings which better suit their indi- least one legitimate business interest (i.e., (b) an agreement in which a restriction Adam D. Kemper, Esq., Managing Partner
vidual goals and interests without jeopard- the protection of trade secrets, valuable on the lawyer’s right to practice is part of of The Workplace Law Firm, PLLC, can be
izing losing their ability to service patients. confidential information or professional the settlement of a client controversy. reached at (561) 805- 3529 or
Regardless of anyone’s perspective or information, substantial relationships with In the Comments to this Rule, the akemper@theworkplacelawfirm.com or visit
opinion, as of today, restrictive covenants specific patients, patient goodwill associat- Florida Bar also notes that “an agreement www.theworkplacelawfirm.com.
for physicians in Florida are still legiti- ed with an ongoing business or profession- restricting the right of lawyers to practice

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