Dear Danielle: Should I Sign a Client’s Confidentiality Agreement?

Dear Danielle:

I finally have a new client (who has signed the retainer agreement I ordered from you and customized for my business–thank you!). However, the client emailed me wanting me to sign a confidentiality/non-disclosure agreement which the owner forgot to give me at our meeting. Would that be necessary to do? –ST

Having a client ask you to sign a confidentiality agreement is a normal, reasonable request. And here’s why:

When working with clients, especially in our line of work, we are often privy and have access to their intellectual property and other proprietary knowledge, processes and information.

Naturally, they would not want you to be taking their intellectual capital and proprietary information and using it for your own benefit, making derivative use of it in your own business, or in any way sharing or disclosing it to others.

So the idea behind a confidentiality/non-disclosure agreement is that you’re basically making a legal promise that you won’t do that and if you breach that promise, they can seek injunctive relief and damages against you.

The reverse can also be true.

You might have intellectual property and proprietary processes and information that clients become privy to that you wouldn’t want them sharing with others or repurposing for their own benefit.

If you have any intellectual capital or proprietary information you want to protect, you might have clients sign your own confidentiality/non-disclosure agreement before working together.

But, as with any kind of legally binding contract, you want to be sure you know what you are signing and not signing away any reasonable right or recourse or be held to any unreasonable standard or liability.

One thing in particular you want to look out for is any language that talks about you not working for anyone else doing the work you do.

This is usually associated with terms like “non-competition.”

(You’ll see this kind of language especially if they are using a generic agreement like you get at OfficeDepot or the freebies you find on the Internet—very, very bad idea as those things are fraught with terrible legal languaging and loopholes that expose both sides to liability.)

If that kind of language is in there, you want to ask them to take it out before you sign anything. You’re a business and no one has the right to expect you to not work with other clients doing the very thing you are in business to do.

Another thing I want to mention that I see all the time in our industry is this silliness about automatically providing clients with a confidentiality agreement.

This is not your responsibility.

That would be like a tenant providing the lease agreement to the landlord. Or a policyholder providing the insurance policy to the insurance company.

The party with the confidential information at stake is the one who writes the instrument protecting it and explaining the relationship, not the other way around.

So, if a client has IP they want to protect, it’s up to them to hire their own attorney and provide you with their own agreement. It’s not your job to do that for them and you could be creating more liability for yourself than is necessary.

And as the saying goes, I am not an attorney. This is not to be construed with legal advice, just my knowledge based on 14 years in business.

I hope it helps, but when it comes to legal matters, you should always, always seek the advice and guidance of an attorney.

One Response

  1. Thanks Danielle! Your answer on this question helped me so much. I was faced with this question just today. Regards Natalie Pasco

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