In House - The FindLaw Corporate Counsel Blog

Should You Hire In-House Counsel From a Competitor?

When assembling an in-house team of lawyers, can you recruit from your competitors? Or, better yet, since you're not going to let anyone tell you what to do, should you?

Recruiting in-house lawyers is not as simple as recruiting other employees from your competitors. Fortunately, non-compete clauses and other covenants that restrict employment for attorneys are not likely to be upheld. However, those pesky professional duties and obligations for lawyers can really get in the way and make an in-house attorney recruited from a competitor more than just nearly useless.

Recruiting Conflicts

When considering to hire a competitor's in house attorney as a member of your team, it is really important to explore the depth of that candidate's potential conflict of interest. Although you may want an in house with years of experience working for your competition, the longer they're there, the more they might be restricted. For instance, it might be okay to hire an in-house patent attorney from a competitor, if that attorney wasn't actually doing intellectual property work for the competitor, and that's what they'd be doing for you. However, even in that scenario, a conflict could still present itself down the road.

Also, the conflict may not just be for the one attorney. An entire company's team of in-house attorneys can be disqualified from handling a case simply because one attorney on the team used to work for a competitor that is now suing. Because in-house counsel regularly work with sensitive, trade secret, and confidential data, after they leave, divulging confidential or privileged information can frequently be overlooked when simply discussing their old duties with new colleagues, or trying to apply their "transferable skills."

Is a Competitor's Conflict My Team's Problem?

That duty of confidentiality owed to a former client is a little bit different for in-house attorneys, and it gets murkier as in-house attorneys climb the ladder. While it may seem that only your competitor has a problem with you hiring one of their attorneys, their problem can quickly become your headache. After all, the last thing you want is to hire outside counsel because your new in house is conflicted out. Also, if your new hire was willing to jump ship and is now telling you their old company's secrets, or just generally running their mouth, is your company next?

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