Some businesses have signs that say: NO SOLICITORS / NO SOLICITING.
This means they don’t want the yellow page guy (or the “fugitive recovery specialist” who walked into my office last week to offer his very unique services) to just show up and want to do business.
The Virginia Criminal Code prohibits certain activities including soliciting, encouraging, urging, exhorting, instigating or procuring another person to do a certain things, usually bad, harmful, wrong and criminal things.
But what does it mean when you sign an agreement that you will not “solicit” customers? What are you actually agreeing to?
Almost every week someone asks me, Dan or the “Google” (and I see it on our website counting software) If a client calls me, is that considered “soliciting?”
Answer: Maybe
Virginia law on non-solicitations is not defined by the Virginia Code. The word, and therefore the activity prohibited is defined by the four corners of your contract. So the answer as to whether or not a client can call you and you do work for them under your non-solicitation agreement, is found in your exact agreement.
This means each and every contract, circumstance, client and call must be considered on an individual basis.
Most of the time I advise folks: No, the language of your contract does not prohibit you from taking a client phone call, but the spirit of the contract and therefore perhaps the judge’s interpretation of your contract does prohibit you from working for clients. So, if you want to get sued, go ahead and do work for them and argue to the judge how you didn’t make the initial phone call or contact and therefore are not in breach.
Harsh I know… but the law is really not about “technicalities” or loop holes as people would have you believe. It is really about what you agreed to, in writing, and whether or not you are violating that agreement.