Achieve Online Signature Legitimacy for Non-Compete Agreement in Australia

How to eSign a document: online signature legitimacy for Non-Compete Agreement in Australia

[Music] well welcome everyone welcome to office hours with Michael kitsis so in some of our recent office hours segments we've been talking about what it takes to find a good financial advisory firm to work with and how to interview for the right fit and but today I actually want to talk about what happens at the other side what happens if you decide to leave your advisory firm because the the unfortunate reality is that our industry actually makes it really hard to switch firms and and most new financial advisors don't realize this especially when they get started there they're just so happy to get a job that they don't think about what they're agreeing to in that employment contract if it doesn't work out or at worst they're thinking well if it doesn't work out cuz I don't get any clients then I'll just be finding a job in other industry so it doesn't matter except the copy of is that sometimes it does work out just not with your current firm and when you want to stay in the industry as a financial advisor but not see your current firm you have to figure out what happens to your clients that you have a relationship with when you leave the firm and are you allowed to take your clients with you so that this theme is the inspiration for today's office hours I was I was reminded the issue with a recent question that was submitted through the blog that I find unfortunately to be a pretty common situation so this comes from will call him Alan who said I recently decided to leave the ra o--'s working out after became clear that the succession plan that was being promised was never going to happen which I realized after listening to your financial advisors success podcast with David growl from a few months ago I've always had a very clear book of clients that I service within the firm but the firm did make me sign a non-compete in an employment agreement when I joined where I agreed not to provide financial services firms to the financial advisory services to the clients of the firm for one year if I left although I did have a specific list of clients that I was allowed to contact a week after my departure but once I left the firm within two days they were contacting all of my clients with a letter alerting them that they were being reassigned to another advisor of the firm being as sure that the firm would still be able to serve them and and one of my former clients at that point alerted me the letter so I contacted a few of them to explain the situation and what was actually happening I wasn't leaving the industry I was just leaving the firm and then in turn the firm hit me with a cease and desist letter and five days later I was served a lawsuit for violating the non-compete what was I supposed to do so ouch my my sympathies to you Alan on the on the difficult situation and one that again I find is increasingly common in the are a community and unfortunately sorry to say the short answer is that it sounds like you really were in violation of your employment agreement with the firm there was a one-week blackout period and you contact through the clients during the blackout period now I understand your frustration that the the firm is soliciting your clients to stay once you're gone and you can't even respond to it because of the non-compete but the truth is that's why the firm likely put a one-week wait for you to contact the clients because they know that gives them a one-week Head Start to contact all of your clients and convince them to stay before you have a chance to contact them and convince them to go and and so as much as that that kind of sucks from your end if your employment contract said that you weren't supposed to contact them for a week you really needed to wait that week the the the time to have negotiated with us was before you left or when you originally joined but as I said earlier the these kinds of situations are increasingly common because more and more Ras are using employment agreements with these kinds of restricted firms to protect themselves if an advisor leaves the firm at some point it's more to recognize that there are actually some differences of the types of riaa employment agreement restrictions they're not all the same there's there's basically three core types that get used in Mostar a employment agreements so the the first type of restrictive covenant in a in an employment agreement is that it's called a non-compete a non-compete provisions in the full variety states if you leave the advisory firm you cannot continue to be a financial advisor for another firm or your own firm if it competes for your prior firm like literally you can't compete and be a financial advisor anymore with a comprehensive non-compete now in practice those kinds of non-comprehensive non-competes are typically very difficult to enforce and in many states they're outright unenforceable cuz no judge is gonna tell a trained experienced professional you're not allowed to have any job for which you were trained and educated you judges don't want to take away someone's entire livelihood now that being said some states will allow narrower non-competes it might simply you can still be a financial adviser but not for competing firm within 20 miles of your current firm or you can still be a financial advisor but not compete with them heads ahead in the local market or or then not give me a mic say you can still be a financial adviser but not in that firms particular niche or it might say you can you can be a financial advisor but you can't compete with the firm for any existing clients that are already with the firm you just have to go out there and do something completely new and different in general the narrower the non-compete the more likely it is to be enforceable and the broader and more generalize it is the harder is for the firm to actually enforce but that hasn't stopped a lot of firms from putting broad non-competes into their employment agreements because they recognize unfortunately not not everyone realizes the non-compete might be unenforceable in their state and a lot of advisers don't have the financial wherewithal to fight the non-compete and prove their case and so the the firm kind of gets away with it because the challenge is knowing enforcing non-competes many Ras that want to really actually protect their clients require advisers to sign an on solicit instead an on solicit agreement says that you will not solicit any of the clients of the firm in other words you can't contact any of the clients of your now former firm to ask them to do business with you after you leave because even if they were your clients in truth they're not your clients they're the firm's clients they sign an advisory agreement with the riaa entity not you personally you are an investment advisor representative an ia are of there are ia which means your your the rep for the firm because the client is the client of the firm even if you were assigned as the clients primary advisor and point of contact and relationship manager from the employment agreement perspective though that the key difference between a non solisten - non-compete is that with a non solicited you can continue be an advisor you can continue be in the same industry in the same niche in the same geographic region the same market the firm is not living your ability to be a financial adviser they're simply limiting your ability to contact their clients when you're no longer an advisor at the firm and because Ananse Elissa is narrower in scope and doesn't generally disrupt someone's ability to earn a livelihood as a financial advisor they're much more likely to be enforced if challenged so in other words with a non-compete you might fight it and get it struck down be much more careful about violating a non solicit though now a notably a non solicit technically doesn't mean you can't work with your former clients it means you can't solicit them so you can't reach out to them after you leave and ask them to keep working with you you can't contact them to tell them you're starting a new firm which suggests they might work with you that's a solicitation because the whole point is you can't solicit them however if you start a new firm and yeah you make a website and they google your name and they find you it's generally still permissible for them to make a decision to switch and work with you under a non solicit but the key is they have to find you you can't reach out and solicit them which means you you have to wait and be passive which will be frustrating because as in Alan's earlier case here the firm you left will almost certainly be proactive in contacting all those clients to retain them and and you can't intervene because intervening would breach your non solicit agreement you have to wait and hope that they find their way to you or or has actually happened in one relatively infamous case the advisor actually bought a billboard ad on a major highway in the city to announce his new firm after he left his old firm because he knew most of the clients would drive on that highway but technically he didn't solicit those clients he just did a broad-based billboard ad to announce his new business to the entire public in an open forum that happened to also notify his former clients along with tens of thousands of others so a lot of the former clients he wanted to reach got the message again though the key point with amounts listed is that you can so be a financial adviser and you can go get new clients you can start fresh and if your old clients work with you find their way to you you can work with them but you cannot contact them and solicit them to come with you you can't ask them before you leave because that's actually an outright breach of your employment contract with your current firm and will almost certainly get you fired and you can't solicit them after you leave because that would breach the non solicit now the third kind of agreement that exists in some are a employment agreements is what's called an on accept an on accept is basically an extended version of an on solicit the non solicit says here's a list of clients you you can't solicit contact and reach out to an on accept says here a list of clients you're not allowed to accept even if they contact you unsolicited in other words even if you respect the non solicit and don't reach out to them if they find their way to you you're still not allowed to work with them under an on accept literally you you can't accept them as clients I in practice I find not accept agreements are less commonly are a business as kind of similar to broaden reaching non-compete agreements it's not clear how enforceable they really are in court if challenged you know it's one thing when an employment agreement says you won't compete with the firm you won't solicit the firm's existing clients buts a whole other thing to tell clients hey even though you want to leave and work with this new firm and not the old firm the new firm isn't allowed to work with you because they used to be part of the old firm doesn't necessarily tell consumers what businesses they aren't aren't allowed to do business with so the not accept portion of an on solicitation agreement may not always be enforceable but still and I can't emphasize this enough this varies state by state and some Ras include a non accept provision in their non solicit agreements simply on the hopes that the adviser either won't realize it might not be valid or won't have the capacity to fight it or depending on the state it might actually be enforceable in that state and you have to honor it but at a minimum if you have a non solicit you need to read very carefully to clarify whether it's just a non solicit where you can't contact the clients but they can follow to you or if you have a non solicit with a non accept that says you can't even take the clients that follow and seek you out on their own after you leave now from the financial adviser perspective this rise of RA employment agreements with non-competes and non solicit challenge because it means that when you get started and build your career and a client base that affirming you decide to leave you're gonna have to start over and leave your clients behind particularly if it's a non solicit agreement because those most commonly are enforceable in most states and almost by definition it means if you leave you you cannot solicit the clients to come with you and while it is possible that some will follow you if you have a good relationship with them and and it's only an unsolicited and not a non accept as well be prepared for the fact that the firm is going to put a hard court press on those clients stay with the firm when you leave and and because most clients have inertia you know once they're with the firm it's a lot easier to stay there than make changes they don't have to repaper and and you redo their accounts and all the rest it if the firm tries to retain them a lot of them are going to stay especially if you were working with part of a team where you may have left but the rest of the team is still at the former firm and and it's just easier for most clients to stick with the current firm the current team and maybe just get a new advisor at the firm on the team to replace your role which means for better or worse be cognizant that if you start out at an RA and get some clients and decide to change firms in the future you may have to start over and leave your clients behind now in some cases at least the reality is that the firm got the clients in the first place and gave the clients the advisor to work with or at least the firm got the lead and hand it's the adviser to close and work with which it means arguably the the firm really should get to keep the client because they got the clients the adviser was servicing the clients which is a valuable role for which you were paid but the fact that you serviced a client for the firm doesn't mean you should get to keep the client if you leave the firm now another situation that grants a little murkier maybe the advisor really did do the work to get the client but the advisor didn't do it alone right the firm was your platform I you got it under the mute the client under the umbrella of the firm so maybe it was 60 percent you and 40 percent firm or 40 percent you or 60 percent from that I think there's really no way to tell and there's no way to allocate like 40 percent of a client human being to one person 60 percent of the other things someone gets the clients as the human being and if the advisor agreement is with the firm and you're an employee of the firm then it's the firm's clients and and they have a right to keep the client and and if you don't like that go make your own firm start from scratch take the risks that go with it because that's what the firm went through to build to the point that they could have a platform and employ you as an advisor that that's part of the risk and trade off which is why it might feel frustrating as an advisor that you have an employment agreement with an on computer and on solicit but from the firm's perspective they take a lot of risk there they're bearing the costs to be that platform in that our back office for you even if you get the clients because you do it with their brands their resources their support their operations in some cases it's even their leads in the first place but in a minimum it means as a financial adviser working with advisory firm you need to know what your employment agreement actually says is there a non-compete is there a non solicit does the non Silla seven on a set requirement it if you care about trying to take clients with you when you're thinking about it will it be legal to do so if you have to hire an employment law attorney in your state to review the agreement pay a few hours for an expert's time to be able to clarify what your agreement really says whether it's actually binding whether it's enforceable and what your rights are as an advisor employee because employment law varies by state by state and that means you really need an attorney in your state that knows employment law non-competes and non solicits in your state like i can't emphasize enough the rules vary from one state to the next of course not all our eyes have these types of restrictive employment agreements I some don't use them at all others explicitly state you're allowed to keep your clients that you develop just just don't take the rest from the firm or or others say you can't take your clients but you can buy them out for a reasonable price now if you're at a broker dealer or an insurance company you also need to contend with broker protocol about what information you're allowed to take with you or not in the first place and and you you need to check whether leaving will require you to repay a salary draw or other compensation you received that's pretty rare at Ras but very common at a lot of insurance companies and broker dealers we may do a whole separate office hours at some point on just the issues to be aware of when you're leaving a broker dealer and in many cases it actually gets even messier than with Ras because the bottom line is that as long as there's money on the line clients with assets and revenue that's being paid to the firm expect that leaving your firm is gonna be a high stakes issue even if you think you have a good relationship with the firm and its owners when they see money leaving and revenue walking out the door even a good relationship can quickly turn sour it's a really sad thing but I've seen it happen over and over again where advisors say I've got a good relationship with the firm I've been there for years we've got a good dynamic we'll all be respectful if I leave and then they leave and it turns ugly you can you can pray that it won't turn ugly but if you're leaving your firm and you're planning on taking clients read your employment agreement carefully get an attorney to understand what it's really in for of all how much it is can be applied in your state and treat it like it will be a contentious issue and then pray it doesn't turn out to be messy because as Alan's earlier story illustrates it's better to be prepared in advance then the leave figure it out as you go find out it's not going well try to intervene to save your clients and then find out you're ending slapped with a cease and desist and a lawsuit for violating your naanum non solicit agreements so I hope that's helpful food for thought and and a heads up about some of the issues you need to be aware of if you're thinking about leaving your current advisory firm but you're subject to some kind of an employment agreement with a non-compete or not solicit this is office hours with Michael KITT says normally 1 p.m. East Coast time on Tuesdays although as you can see I've been travelling for speaking engagements this week so here we are at the airport but thanks for joining us for everyone and have a great day [Music]