L'obligation de non-concurrence dans les sociétés de professionnels : vers une théorie de liberté de choix contractuelle

Professional parlnerships offer services to the public and in the services industry the most valuable asset to an enterprise is its clients. Due to the nature of competition in the marketplace, an entreprise wishes to protect its most valuable asset. Professionals have a right to work and wish to protect their clients. Non-competition clauses are thus designed to strike a balance between the deparling professional's right to work and the parlnership's right to protect its clients. Although the caselaw in matters of restrictive convenants as they apply to employment contracts and sales of enterprises is well-established, more consideration is needed in matters relating to non-competition clauses between professionals and the parlnerships in which they worked given the Iimited caselaw and doctrine on the subject. In fact, non-competition clauses as they relate to professionals must take into account factors such as the public's right to choose a professional provided for in specifie Codes of Ethics and, with respect to attorneys, present in the Canadian and Quebec Charlers. Our objective is to bring to light these factors as they apply to professionais and professional parlnerships. Our analysis emphasizes freedom to contract between professionals given the commercial nature of professional services confirmed by the Civil Code of Quebec in 1994 in its definition of the notion of enterprise. The caselaw demonstrates that Courts have generally recognized that non-competition clauses entered into by competent professionals are valid insofar as they are reasonable. The clauses must therefore respect the traditional criteria of limitation in time and space. However, public order considerations with respect to professionals dictate that clients have a right to choose their professionals given the intimate nature that often characterizes professional client relationships. In order to respect this right Courts have been reluctant to impose injunctions on the professionals that compete for the clients with their former firm. However, the balance between the interests of the professional partnership and those of the professional and the client is struck by enforcing penal clauses against the departing professional thus imposing monetary sanctions that serve to protect the economic interests of the partnership. Final/y, the obligation of loyalty and trust that an employee owes to his employer provided for in article 2088 of the Quebec Civil Code also applies to professionals whether they are salaried or partners in the partnership. In addition, all professionals are subject to the obligations contained in their respective Code of Ethics such as professional secrecy. Therefore, the obligation of loyaltyand trust (fiduciary obligations) of the professional extend not only to the employer but to the client thus confirming the unique status of professionals in the workplace.

Keyphrases: Restrictive convenants, Non-competition clauses, Professional partnerships, Code of Ethics, Public order, Injunctions, Penal clauses, Non-solicitation clauses, Obligation of loyalty