Non-Solicit vs Non-Compete: A Strategic Choice, Not a Default

A common mistake

The standard outside-counsel template includes both a Non-Compete and a Non-Solicit, with the implicit logic that more protection is better. In practice, that approach often produces less protection, because:

• Courts construe overlapping restrictions narrowly.
• A void Non-Compete can taint the enforceability analysis of an otherwise reasonable Non-Solicit in the same instrument.
• Severability clauses help, but they do not erase the impression on a chancery judge that the employer overreached.

When a Non-Solicit is the stronger play

If the asset you actually need to protect is the customer relationship, the Non-Solicit is doing the real work. It survives in more jurisdictions, draws less judicial hostility, and is easier to scope tightly enough to enforce.

In particular, courts are more willing to enforce Non-Solicits when:

• The protected list is contemporaneous (not "every customer who has ever done business with the company").
• The duration tracks reasonable customer-relationship sales cycles, typically 12 to 24 months.
• Post-termination non-acceptance (cannot accept business even if the customer initiates contact) is reserved for genuinely senior, customer-facing roles.

When a Non-Compete is the stronger play

If the asset is technical know-how or strategic methodology that will be inevitably disclosed in a competitor role, the Non-Compete remains the right tool, paired with strong confidentiality and ideally garden-leave compensation. Without garden leave, most modern courts will be skeptical.

The covenant portfolio that reliably wins on the merits is the one designed around the specific asset at risk, not the one that copies the firm's standard template across roles.

Operational implication

The platform's risk leaderboard ranks covenants not by aggregate severity but by enforceability-adjusted value: how much real protection survives jurisdictional discount. Counsel can use that view to identify roles where the template is over-restrictive in the wrong direction and under-restrictive in the right one.