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CPIL Executive Director Robert C. Fellmeth’s OpEd on Attorney Ethics and Unenforceable Employment Contracts Published in LADJ

CPIL Executive Director Robert C. Fellmeth’s OpEd on Attorney Ethics and Unenforceable Employment Contracts Published in LADJ

SAN DIEGO (June 11, 2019) – University of San Diego (USD) School of Law’s Center for Public Interest Law (CPIL) Executive Director, Robert C. Fellmeth’s opinion editorial, discussing attorney ethics and unenforceable employment contracts was published by the Los Angeles Daily Journal.

According to the editorial, increasing numbers of workers are handed fine-print employment contracts.  They govern everything from salary and benefits to the location and conditions of work.  And they include how disputes with their employer are to be resolved.

These contracts are usually drafted by lawyers for the corporate employer who know how the law works.  They are typically presented to new workers who lack attorney representation or review, are unlikely to understand it fully, and are confronted with a “take it as it sits or lose the job” setting.

A large number of the contracts commonly include provisions that violate the law, and as such are either voidable or cannot be enforced in good faith. Causing Fellmeth, and CPIL, to question: "What are the obligations of counsel in a setting where a client would benefit from an unlawful or unenforceable provision? Does it matter if the source of its inclusion is the attorney herself or whether it is insisted upon by the client?"

According to Fellmeth, including “such provisions violates the Rules of Professional Conduct, even if the client demands it.” The Center for Public Interest Law submitted a letter to the California Bar asking for an ethics opinion on this point, so it might bring the profession into compliance with ethical standards.

Fellemth goes on to state, “[t]his is not a theoretical problem. In 1992, only 5 percent of the non-union private sector workforce in the United States was subject to an employment contract requiring arbitration of workplace disputes. Yet according to a recent study, the number by 2018 had risen to over 55 percent of workers.”

Fellmeth worries that an even more alarming example are “disturbingly common unlawful noncompete clauses. These contracts, which purport to restrict a worker's right to work for competing company after her employment has ended, are nearly always unenforceable under California law. Notwithstanding that rather profound status, California employees suffer common inclusion of such clauses.”

To date, court sanctions have not deterred the inclusion of such unlawful measures. 

To read the full OpEd in the Los Angeles Daily Journal click here.

About Center for Public Interest Law

Founded in 1980, the University of San Diego School of Law’s Center for Public Interest Law (CPIL) serves as an academic center of research and advocacy in regulatory and public interest law. CPIL focuses its efforts on the study of an extremely powerful, yet often overlooked, level of government: state regulatory agencies. Under the supervision of experienced public interest attorneys and advocates, CPIL law student interns study California agencies that regulate business, professions, and trades.

CPIL publishes the California Regulatory Law Reporter, a unique legal journal that covers the activities and decisions of over 12 major California regulatory agencies.

In addition to its academic program, CPIL has an advocacy component. Center faculty, professional staff, and interns represent the interests of the unorganized and underrepresented in California’s legislature, courts, and regulatory agencies. CPIL attempts to make the regulatory functions of California government more efficient and visible by serving as a public monitor of state regulatory activity. The Center has been particularly active in reforming the state’s professional discipline systems for attorneys and physicians, and in advocating public interest reforms to the state’s open meetings and public records statutes.

About the University of San Diego School of Law

Recognized for the excellence of its faculty, curriculum and clinical programs, the University of San Diego (USD) School of Law educates approximately 800 Juris Doctor and graduate law students from throughout the United States and around the world. The law school is best known for its offerings in the areas of business and corporate law, constitutional law, intellectual property, international and comparative law, public interest law and taxation.

USD School of Law is one of the 84 law schools elected to the Order of the Coif, a national honor society for law school graduates. The law school's faculty is a strong group of outstanding scholars and teachers with national and international reputations and currently ranks 36th nationally among U.S. law faculties in scholarly impact and 29th nationally in past-year faculty downloads on the Social Sciences Research Network (SSRN). The school is accredited by the American Bar Association and is a member of the Association of American Law Schools. Founded in 1954, the law school is part of the University of San Diego, a private, independent, Roman Catholic university chartered in 1949.

Robert C. Fellmeth, Executive Director at the Center for Public Interest LawRobert C. Fellmeth, Executive Director at the Center for Public Interest Law

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Katie Gonzalez
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