[Don Plumley]

A non-attorney opinion:

A non-compete and a non-solicit are two different things. In Cali, non-competes are pretty much unenforceable except in unusual circumstance. However, a non-solicit can be enforced so long as it does not preclude you from work. In other words, if you were an accountant for avocado growers only, it would be difficult to enforce the non-solicit - you must be able to work. But if you could be an accountant for any farmer, then the non-solicit is easier to enforce.

I've pulled non-competes out of all our contracts, but I have specifically put in non-solicits for customers or employees.

From my perspective, that clause is reasonable in a professional services environment - you can go be an accountant for anyone. Remember, just because it is not enforceable does not mean you can't be subject to a lawsuit and the attendant expenses.

If you can demonstrate breach of contract, then the non-compete (unless protected elsewhere in the contract) is moot. Frankly, I'd work on an agreement with the other party - pay him 10% for one year to put the matter to bed.