Every once in a while, we as attorneys will be asked by a client to sign a nondisclosure agreement prior to a meeting or initial consultation. These nondisclosure agreements—commonly referred to as NDAs—serve the purpose of protecting a party’s confidential business and financial information by placing a contractual duty on the other party not to use or disclose that information. Clients have been told again and again by lawyers and other advisors that anyone they share confidential business information with should first be asked to sign an NDA to protect them.
However, in the context of engaging and consulting with an attorney, an NDA can be a detriment to both parties. Attorneys are already bound by the ethical rules and requirements of our profession not to disclose the confidential information shared with us by a client. In California, for example, an attorney is required “to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets of his or her client” (Cal. Bus. & Prof. Code Section 6068(e)(1)) and may “not reveal [confidential] information without the informed consent of the client.” (Cal. Rules of Prof. Conduct Rule 3-100). This is true even if you simply have an initial meeting and do not end up hiring that lawyer.
Further, everything you disclose to your attorney in the course of the attorney-client relationship is protected by the attorney-client privilege and is not admissible as evidence in a court of law. This duty of confidentiality is at the very heart of the attorney-client relationship and you can be sure that your attorney knows and appreciates this important rule of legal practice.
Because this legal duty not to disclose confidential information already exists in the case of a lawyer, an NDA is unnecessary, and attorneys are advised by legal ethics experts not to sign them. The strict confidentiality duties in place make it easy for attorneys because they do not have to analyze NDAs clients propose to see if they comply with the laws that already govern the attorney-client relationship. Further, a lawyer does not want to find themselves in a situation where they are bound by contractual obligations to their client that potentially alter the important existing ethical obligations they already have under the law. For example, an NDA could constrain communications that your attorney may need to be make in the future to a court or other governing body on your behalf.
Most lawyers will emphatically refuse to sign NDAs with their clients for these reasons. You should feel free when consulting or engaging an attorney to assist you with your legal needs that anything said to that lawyer will be kept in strictest confidence, as the attorney is bound to do so under the law.
[Image credit: “Handshake (Workshop Cologne ‘06)” by Tobias Wolter – Own work. Licensed under CC BY-SA 3.0 via Wikimedia Commons]
Lizbeth Hasse
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