A lawyer confidentiality agreement is designed to allow clients to have open, confidential communication with their in-house and outside counsel. Any discussion cannot be disclosed to third parties. The agreement is put in place to protect the attorney-client relationship. For the agreement to stand, the following three items must be adhered to:

  • Keeping all communications confidential
  • Protect the attorney-client relationship
  • Allow for transparency when obtaining or providing legal advice

The state where the attorney-client privilege takes place will also dictate the overall parameters. Therefore, it is important that in-house counsel understands the state (or country) stipulations of where their headquarters are located. The same should be done if the attorney practices out of an office in another state (or country).

Attorney-Client Privilege

There are limitations to attorney-client privilege. The privilege applies in the following circumstances:

  • If the client requests legal advice from the attorney.
  • Attorney to attorney discussions that cover legal advice and information related to the client.
  • When legal advice is provided by the attorney to the client.

There is a common misinterpretation by attorneys and clients that anything they write is protected by the attorney-client privilege. It should be noted that privilege is only for legal advice, such as communication that is related to litigation.

In contrast, advice related to business is never privileged, which can be hard to differentiate. To clarify between the two, communication can be labeled to show if it is for legal or business advice. Label the email or document with a phrase like "Attorney-Client Communication: For the Purpose of Legal Advice." Labeling should also apply to any additional documentation that is sent to the attorney. This will prove beneficial if privilege needs to be determined by a judge in the future.

Best Practices of Attorney-Client Privilege

To preserve the relationship and maintain attorney-client privilege, the following should be adhered to:

  • Only share legal advice and communications with those who need to know
  • Communication should remain confidential and internal
  • Information should not be shared outside of the company
  • Determine and understand what is privileged and what is not
  • Confirm all communications are labeled correctly
  • Understand how privilege works in your state
  • Confirm all legal team members understand privilege

Confidentiality Agreements in Business

Employment contracts often include a confidentiality agreement. This type of agreement, also known by the names nondisclosure or secrecy agreement, is used to protect and maintain the confidentiality of the company's intellectual property. Confidentiality agreements are also used between business partners when confidential information is shared by inventors and entrepreneurs.

The agreements must be written in a specific manner to be enforceable to protect information ranging from formulas, inventions, trade secrets, and the like. A detailed confidentiality agreement will increase its effectiveness. In comparison to the more restrictive noncompete agreements, a confidentiality agreement is more likely to be enforced.

A well-written confidentiality agreement helps protect a company in keeping important information confidential. If an employee does breach the agreement and shares information with a competitor or publicly, the agreement provides an outlet for legal recourse.

Advantages of Confidentiality Agreements

Confidentiality agreements are critical to the protection of intellectual property, trade secrets, or other proprietary information. The agreements offer more added legal protection than what comes with violating patented or protected information. The company not only protects itself during the employment of the individual, it also prevents information from being shared if the employee leaves the company.

A confidentiality agreement is used to do the following:

  • Prevent the disclosure of private technical or commercial information
  • Prevent patent rights forfeiture
  • Clearly explains information that can and cannot be disclosed
  • Protect trade secrets
  • Protect confidential company financial information
  • Restrict the ability of former employees to share proprietary information

What Is Covered and What Is Not Covered

Confidentiality agreements protect the following:

  • Machinery used
  • Developments in technology
  • Secret processes
  • Future plans
  • Ingredients or materials used
  • Pricing
  • Formulas
  • Data
  • Employee-created work products

The agreement may also include additional items that are specifically listed in the agreement.

For the agreement to be valid, it must include reasonable expectations and not be extreme in nature. It cannot be unfair to the employee or overreaching. General knowledge and skills acquired during employment are not considered privileged information.

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