Is a 12-Month Non-Solicit in a Freelance Contract Enforceable?

Three different clauses under one name

Contracts use "non-solicit" for several different restrictions, and the difference matters.

The first is the least restrictive and the most commonly enforced. The third is the most restrictive, because it applies even when you did nothing to seek the work out. Many clauses mix all three, so read the verbs carefully: "solicit," "accept," "provide services to" and "do business with" mean very different things.

• Employee non-solicit: you agree not to recruit the client's staff.
• Customer non-solicit: you agree not to approach the client's customers to take their business.
• Non-dealing or no-hire: you agree not to work with those customers even if they approach you.

How courts look at these clauses

Most states test restrictive covenants for reasonableness. Courts ask whether the client has a legitimate interest to protect, such as confidential customer information or relationships it paid you to service, and whether the restriction goes further than needed to protect it. Relevant factors include:

State law varies widely. California's Business and Professions Code section 16600 voids contracts that restrain anyone from a lawful profession, trade or business, and courts there have applied it to customer non-solicits in many settings. Several other states restrict non-competes for lower earners or specific workers, and some of those rules reach contractors. Check your state before relying on any general rule.

• Duration: 12 months is common; longer periods face more scrutiny.
• Scope: specific customers you worked with, compared with every customer or prospect the client has.
• Activity: actively soliciting, compared with accepting unsolicited work.
• Your status: courts may look harder at restrictions on independent contractors, who run their own businesses.

The prospect problem

One of the most damaging phrases is "customers or prospective customers." A client's prospects might include every company it pitched or listed in its CRM. You have no way of knowing who those are, so you cannot comply with confidence. Ask to remove prospects entirely, or limit them to named prospects you personally dealt with during the engagement.

When the client is an agency

Agencies commonly include clauses stopping you from working directly for their clients. That is a legitimate concern: an agency does not want to introduce you to a client and then lose the account to you. A fair version limits the restriction to the specific end clients you worked on, for a defined period such as 6 to 12 months, and allows you to accept work if the end client comes to you after that period or through a different route. Some agencies also agree a conversion fee instead of a ban, which gives everyone a way out.

Hiring restrictions work both ways

If the contract stops you hiring the client's staff, consider whether the client should also agree not to hire you directly as an employee or engage your subcontractors. Mutual restrictions are fairer and easier to accept.

What happens if you breach it

If a non-solicit is enforceable and you break it, the client could seek damages, usually lost profits it can prove, or an injunction stopping you from continuing to work with the customer. Some contracts add liquidated damages, such as a fee equal to several months of billings. Courts will not enforce a liquidated damages figure that is a penalty rather than a reasonable estimate of loss, but you should treat it as a real risk.

A worked example

Leila, a freelance marketing strategist, signs a contract with a consultancy that bars her for 12 months from "providing services to any client or prospect of the Company." After the project, a retailer she met at a conference, which the consultancy had pitched once, asks her to work directly for them. The consultancy says this breaches the clause.

Because the clause covers prospects and bans providing services, not just soliciting, Leila faces a dispute even though she never used the consultancy's information. A narrower clause, limited to clients she actually worked on and to active solicitation, would have left her free to accept the work.

Sample wording you can propose

"For 12 months after the end of this Agreement, Contractor will not directly solicit, for the purpose of providing competing services, any client of the Company for which Contractor performed services under this Agreement. This clause does not prevent Contractor from responding to unsolicited enquiries, general advertising, or working with any person who was Contractor's client before the Effective Date."

Common mistakes

• Treating a non-solicit as harmless because it is not called a non-compete.
• Accepting "prospects" or "affiliates" without limits.
• Missing the difference between "solicit" and "accept work from."
• Forgetting to carve out clients you already had before the engagement.
• Assuming a clause is void in your state without checking which state's law the contract chooses.

Quick checklist

• Which customers are covered: only those you worked with, or all customers and prospects?
• Does it restrict soliciting only, or also accepting work?
• How long does it last?
• Are your pre-existing clients carved out?
• Which state's law governs, and does that state limit these clauses?
• Is there a liquidated damages figure, and is it proportionate?

Key terms explained

These words decide how far a non-solicit reaches.

• Solicit: actively approaching someone to seek their business or recruit them.
• Non-dealing: a ban on doing business with someone, even if they approach you.
• No-hire: a ban on employing or engaging someone's staff.
• Legitimate business interest: the protectable interest a restriction must serve, such as customer relationships or confidential information.
• Blue-penciling: when a court trims an overbroad clause rather than striking it entirely, which some states allow.
• Liquidated damages: a fixed sum agreed in advance as compensation for a breach.

Questions to ask the client

Before you negotiate wording, ask what the client is worried about. The answer usually points to a narrow fix.

Clients often accept a narrower clause once they see it protects the relationships they care about. A conversion fee in particular turns a restriction into a commercial arrangement that works for both sides.

• Are you worried I will take the clients I work on, or hire your staff?
• Would limiting the clause to clients I actually work with cover your concern?
• Can we exclude clients I already had, and anyone who approaches me directly?
• Would a referral or conversion fee work better than a ban?

Keep evidence of your existing relationships

If you sign a non-solicit, make a dated list of the clients and contacts you had before the engagement, and keep it with the contract. If a dispute ever arises, you can show the relationship pre-dated the client's introduction. Keep records of how new clients found you, such as an inbound email or a referral, especially in the months after the engagement ends.

Narrow it now

A freelance non-solicit should protect relationships the client introduced you to, not your whole market. Removing prospects, limiting it to active solicitation and carving out your existing clients usually costs the client nothing it genuinely needs. If you want to see how the clause reads alongside the rest of the contract, upload it for a clause-by-clause review.