Lawyers are regularly asked to sign non-disclosure agreements (NDAs). But typically, we don’t sign them. Why is that?

It’s redundant

Lawyers are already bound by ethical rules and stipulations for not disclosing confidential information that a client has shared with us. This is what’s called the attorney-client relationship and it is protected by attorney-client privilege. In court, these disclosures are not admissible as evidence and this confidentiality (and trust) is key to every good, working legal relationship.

It would be like asking a doctor to please not tell anyone about health conditions discussed in an appointment. Doctors are already bound by ethics standards and laws that uphold medical confidentiality.

Lawyers are held to a higher standard than an NDA might enforce. Attorney-client privilege is even protected by the 5th Amendment. So, NDAs are pretty redundant for a lawyer in the first place.

It can be limiting

NDAs sometimes come with stricter communication clauses that may limit an attorney’s ability to be effective in the future on a company’s behalf if the company is dealing with a governing body. Basically – an NDA can hinder a lawyer’s ability to represent their client or a company as the wording may be ultimately harmful/too restrictive.

An NDA may limit an attorney’s ability to pursue their client’s best interests.

And, NDAs might conflict with the attorney-client privilege. Language in an NDA might be phrased in a way that leads someone trying to require a lawyer disclose information about the client could point to in order to argue that the client consented to disclosure. For example, most standard form NDAs include a definition of “Confidential Information” that includes some major exceptions.

But NDAs are still good – just not for a lawyer

An NDA can be a critical part of a business. In most business dealings, there is no duty to either side or any sort of established privilege/ethical oaths at play. Requiring an NDA can take a loose, verbal commitment between two parties and make it more than a matter of karma and conscience by making it legally binding.

NDAs have their place and time – just not with a lawyer when they’re already superseded by attorney-client privilege.

Odin Law