The case of  Loreto v. Little et al, 2010 ONSC 755 deals with how the law is a little different with non-competition, non-solicitation or confidentiality clauses for lawyers, doctors, dentist and other professionals that have files and payient lists.  You can read the case here.

Most of this commentary is pulled verbatim from this case. Normally when an employee departs his or her employer certain things are well known and set in place. Outward-bound employees, as a general rule, have certain responsibilities when they depart their employer. At the very least, in the absence of any restrictive contractual provisions, the departing employee has an implied obligation of fidelity. A departing employee may set up shop in competition with her previous employer; she can even contact clients or customers utilising a public phonebook, but he/she can’t take and apply client lists to establish these calls. Normally when the outward-bound employee is a fiduciary, the rules become more constrained. He/she cannot contend with his/her previous employer or solicit customers for at least a commonsensical period of time. And he/she certainly cannot use customer lists belonging to the employer to contact clients and solicit business. However, in cases involving professionals, such as lawyers or doctors or any other professional these “general” rules do not really apply.

A dissimilar approach is assumed principally because of the personal nature of professional services and the client’s right to choose which professional to do business with. In the case of Goodman v. Newman the Judge noted that pofessionals such as doctors, dentists and lawyers do not have the same proprietary right to their patient or clients as does a corporation to its customers. Professionals provide a personal service and establish a personal relationship with their clients, regardless of where or how the client or patient arrived at the firm or practice. The client or patient ought not to be “handcuffed’ to the business. Clients should have freedom of choice.

In the case of Bacher v. Obar, (1989) 28 C.C.E.L. 160, a case in which a departing dental practitioner, in the absence of a restrictive covenant, set up shop across the street and continued to care for any patients who sought-after his services including those he had cared for at the clinic he had just left. The Judge noted in this case that patients have the right to choose their dentist. They are not property to be bought and sold like inventory. Each dentist had the right to provide service to anyone who requested it.

In the case of Layne v. Michaels,out of British Columbia, the Judge noted that it is for the client to decide who will represent him. And if the client chooses to follow the departing associate, the firm does not have the power to veto.

In the case of Vertlieb Anderson v. Nelford, also out of B.C., the Judge noted that if a client chooses to leave with an associate, the associate is obviously taking a business advantage which belonged to the firm. However, as set out in Can. Aero, there is a way of taking a business advantage which breaches one’s fiduciary duty and a way that does not. The unique aspect of the associate’s simultaneous and overriding fiduciary duty to his client means that it is the client and not the firm who actually sanctions the taking of the business advantage. So what does this all mean? It means that normally departing professionals will normally be looked at as fiduciaries having fiduciary obligations because of the power and control they have been given over their files/patients…etc.

Normally the departing will not only have a right to contact former clients, but he/she normally has an obligation to contact the client and tell her that he/she has departed from the firm or practice. This will normally not constitute solicitation. It is important to know that for lawyers, a 2009 Law Society guideline clearly mirrors the long-standing requirements of Canadian law by saying that clients should be told of their options for continued representation by the firm, by the departing firm member or by a new lawyer or paralegal chosen by the client…If the firm will not agree to provide clear direction on how the clients will be notified of the lawyer’s or paralegal’s departure, the departing lawyer or paralegal should advise the clients in a neutral manner that he or she is leaving and of the client’s options for continued representation. In an ideal world, the firm and departing lawyer would cooperate and the firm would take the lead in contacting the affected clients and presenting them with the three options.

If you are an employer, what you don’t want to do is where you learns of your junior professional’s intent to leave the practice then to lock the junior personal out immediately. This is an instinctive reaction. It is an instinctive reaction of senior professionals to think that all the patients or clients are his/hers. The senior professional is wrong in this. There is no property in a dentist’s patients and, similarly, in my view, there is no property in an optometrist’s patients. These clients/patients are free to follow the departing employee if that client/patient wishes to do so. LIke I mentioned above, a departing employee has a right and a duty to notify them of their new location. [ What about breaches of confidentiality? Again, in the case of professionals such as doctors, lawyers or dentists, A departing attorney or other professional is allowed to take, even to download, a listing of the clients, patients she/ he has personally acted for with in order to contact them and offer them the choice to remain of tocome with him/her and continue the relationship. For example, in the case of Lodwig v. Mather, the court found that a departing dentist has the right to print off a list of patients from the employer’s computer in order to identify and contact the patients he personally treated. The Judge in this case said that a dentist who practices as an associate or even as an employee of another dentist, has the right to have access to or retain the names of the patients with whom he or she has had an exclusive or primary dentist-patient relationship and to advise those patients of the change of location of his or her practic In Goodman v. Newman the court found that a departing dentist who took with him a list of the five or six hundred patient that he had personally cared for did not offend any duties of confidentiality. The client list was not confidential information. In the case of Cressman the Judge concluded that downloading a lost of patients who the departing optometrist was scheduled to see over the next two months, contacting them and telling them about her departure and then giving them a choice of staying with her or with the old practice was something the optometrist “had both a right and a duty to do.” Therefore normally it will be clear that the use of the clinic’s or firm’s client list to contact their clients/patient lists and provide them with the required choices will not be a breach of any duty of confidentiality.

This is not legal advice.  It is a case comment taken from the above noted case.