Entrepreneurs, trademark owners, technology startups, and local business owners share common confusion when it comes to the ethical duties of an attorney of confidentiality. In this legal tech blog post, we discuss the difference between attorney-client privileges and Non-Disclosure Agreements and the advantages and disadvantages of each. This will clear up the expectation of clients and ease the client’s anxiety when it comes to choosing the right attorney to work with.
A top-rated attorney will work diligently to protect your intellectual rights, trade secrets, and can equitably advise you when it comes to company valuation, growth, and scaling strategies, vesting schedules with or without cliffs, and other terms of the relationship.
Attorney-client Privilege Before a Relationship Exists
Most non-disclosures are signed between employers and employees, prospective partners or mergers, business owners and developers, independent contractors, and other third parties. In relation to your attorney, an NDA is unnecessary and redundant. The Attorney-Client privilege is a long-standing and fundamental rule protected by the 5th amendment to protect the information of a client, actual or potential.
Once in a while, a client may want to add confidentiality provisions to protect their trade secret. However, NDAs are not required in an attorney’s engagement letter. Lawyers are governed by attorney-client privilege and a legal nondisclosure agreement in California and across U.S states. An attorney-client privilege keeps confidential communications between an attorney and his client a secret even in circumstances such as a subpoena or court order. All confidential information, whether it is disclosed orally or written, is protected by this mandate.
An NDA contains clauses such as, “where a required pursuant to legal process” confidential information may be disclosed by the attorney, as seen in Clause 2.2(i). This proves that the attorney-client privilege is far stronger than an NDA when it comes to protecting trade secrets and client confidential information from the initial consultation and throughout counsel.
California Business and Professions Code Section 6068 subsection (e)(1) states the obligation of an attorney must “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secret, of his or her client”. This clause provides stronger protection for the client. Even after the attorney-client relationship ends or death occurs, the privilege still exists. The purpose of this rule is to foster trust and confidentiality in the attorney. For an attorney to effectively give guidance and counsel, clients should not be hesitant or secretive. All licensed attorneys are ethically bound to a duty of confidentiality.
Duty of Confidentiality
Rest assured that by law, your intellectual information is confidential, even if you are only a prospective client. This gives prospective clients peace of mind as well as enables them to seek out the right lawyer for their situation without feeling bound to the first attorney they speak to. It is highly unlikely that an NDA is necessary for your working relationship with an intellectual property attorney. The contradictions under an NDA can prevent an attorney from accurately representing you.
Our lawyers have successfully represented brands, entrepreneurs, business owners, and startups when it comes to company valuations, growth, trademarking, and countless client needs without NDAs. Only in extremely rare circumstances are needed. Speak to an experienced attorney to discuss how your intellectual property can be protected. We work with clients across the United States such as Los Angeles, New York, Atlanta, Miami, and Dallas.
