[Posted January 15, 2009] The Supreme Court issued an unpublished order on January 7 that gives us a glimpse into how the court (or at least this three-justice panel) views the right to counsel. It also offers some instruction on how the court treats injunction appeals under Code § 8.01-626. The case is styled Wells v. Rick Aviation.

The underlying litigation is between Rick Aviation and the Peninsula Airport Commission. During that case, the trial court directed three people to appear for depositions. The three were not parties to the case. That fact probably contributed to the next part of the trial court’s order: The three were directed to submit to the depositions without bringing any lawyers to represent and advise them.

The three prospective deponents treated the order as an injunction, and their counsel wisely filed an expedited appeal under the statute I mentioned above. That gives a party a right to file a petition for review of an injunction order within 15 days, instead of the more leisurely pace of a normal appeal. Of course, waiting for a final order in the case would have made the objection moot, since the deposition would have been concluded by that time.

The statute permitting such review specifies that the petition is to be presented to a justice, and that justice is empowered to “take such action thereon as he considers appropriate under the circumstances of the case.” But as a practical matter, that isn’t how the court handles them; in almost all such appeals a panel of three justices considers and decides the matter. That’s what happened here, as a panel comprising Justices Kinser, Lemons, and Millette affirms in part and reverses in part. The court affirms the requirement that the deponents attend the depositions, but it reverses the directive that they show up without legal counsel.

My best guess is that the trial court reasoned that in depositions, “Examination and cross-examination of witnesses may proceed as permitted at trial.” That is, the lawyers and parties in a deposition engage in the polite fiction that they are in fact in the courtroom (except that there’s no judge present to make instant rulings, and no louring bailiff ready to enforce her honor’s directives). In courtrooms, witnesses typically do not bring lawyers to advise them on how to answer, so the trial court probably felt that it would be inappropriate for a lawyer who wasn’t counsel of record for one of the parties to sit in and tell a witness how to answer. Hence the order barring outside attorneys from showing up. The Supreme Court’s reversal of this part of the order demonstrates how much this panel, at least, is committed to permitting parties to have legal representation in such proceedings.

In another case decided recently (my first-class excuse on these is that I was out of town last week and didn’t know about these decisions until now), the court deals employers the latest in a string of setbacks in cases involving covenants not to compete. The appeal is Greenbrier Obstetrics and Gynecology v. Leao.

Dr. Leao joined the medical practice and signed a contract that included a covenant not to compete. As such covenants go, it was fairly well drawn; it covered a 20-mile radius (quite reasonable, in my view) and would last for two years after her separation from the practice (perhaps a bit long, but not obviously invalid for that reason). The terms of the agreement also gave either party the right to terminate the contract “without cause and without any further obligations” by the giving of 60 days notice.

Three years later, Dr. Leao had to leave the practice for medical reasons. She gave the required 60-day notice. After leaving, she filed a declaratory judgment action, seeking a ruling that the covenant wasn’t enforceable. In doing so, she argued that the termination meant that she and the employer separated “without any further obligations” to each other, and that includes the waiver of the covenant. The contract did contain a severability clause that said that the employer wouldn’t be barred from enforcing the covenant by virtue of its breach of the agreement; but this clause didn’t mention anything about a termination without default (such as by the 60-day notice).

The trial court ruled in favor of Dr. Leao, and the Supreme Court affirms on January 9, finding an “unresolvable conflict” between the two provisions. In order to rule in favor of the employer, the court finds, it would have to add the phrase, “except for the covenant not to compete” after the “without any further obligations” language. Since the court won’t rewrite the deal, and since the contract is construed against the drafter – that would be the medical practice – the covenant isn’t enforceable.

I can think of only one case in the last four years and one day (the time during which I’ve been publishing this web site, and reading every single Supreme Court opinion) in which the court has ruled in favor of a party who’s trying to enforce a covenant not to compete. That one was Ulloa v. QSP, Inc., 271 Va. 72 (2006), and in that case, the employee conceded that the covenant was enforceable. This court gives very careful attention to such covenants, since they’re in restraint of trade and can deprive an employee of the ability to earn a living. If an employee wants out of such a provision, he still needs an excuse better than a bad hair day, but if he has even a plausible reason to pry the contract open, he stands a good chance of success.