Now That Is An Efficient Intake Filter: Why An Attorney Should NOT Sign an NDA. Never. Ever.

Now That Is An Efficient Intake Filter: Why An Attorney Should NOT Sign an NDA. Never. Ever.

This is where I am coming from: A client is asking me to sign an NDA before I can draft a patent application for him.

Should and Would you proceed?

Why not?

Short answer: no.

Most clients that request an NDA signed by their lawyer are people that are overly difficult to work with. Save your valuable time for other clients.

Remember: if never any client walks away because you are too expensive then this is a sign that you are too cheap.

Use those clients who are asking for an NDA as a training ground. Don´t sign that NDA. And increase your price to see how valuable this client perceives your services. You will be surprised.

 

Long answer: no.

Use the following email as a template for your answer to that client:

Dear Client,

We refer to your email of today.

1. We are happy to see that you take data security seriously, and we would like to assure you that whatever information you provides to us will only be used for the purposes for which it is disclosed – even if there is no NDA in place.

This is because we already have a duty of confidentiality expressly set out in the code of conduct of the Singapore patent laws and of the German patent laws.

2. We take this duty of confidentiality very seriously. This is why we have employed a German data protection officer to oversee the security of our files and computer systems. We have an ongoing internal improvement process with respect to GDPR compliance in place.

All our employees also sign NDAs with us, to safeguard any information they have come into contact with during the course of their work here.

3. In short, an NDA with us is not required because we already have statutory duties of confidentiality. That is why it is our company policy not to sign NDAs with our clients.

Please let us know if you are willing to continue working with us without an NDA.

Best regards

 

Why Clients Are Asking For NDAs

That is a standard problem, and it is not the client’s fault. Your 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, in order to protect them.

There is also a special personality type of clients that requires an NDA to be signed. What I have seen often is that these clients are likely to be problematic and they even threaten the attorney if their own invention turns out to be an economic failure.

Put bluntly, patent practitioners do not need the hassle of representing someone whose first request is to set up a lawsuit if something goes wrong.

 

NDAs Are Bad For The Client-Attorney Relationship

In the context of engaging and consulting with an attorney, an NDA can even 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. This applies even if you simply have an initial meeting and you do not end up being hired as a lawyer.

Further, everything your client discloses to you in the course of the attorney-client relationship is protected by law. It is in many countries even not admissible as evidence in a court of law.

These strict confidentiality duties in place make it also easy for us attorneys because we do not have to analyze those NDAs that clients propose. And you need to analyze them because you need to check if the NDA complies with the laws that already govern your attorney-client relationship. You do not want to find yourselves in a situation where you are bound by contractual obligations to your client that alter the existing ethical obligations that you already have under the law. For example, an NDA could constrain a communication that you may need to make in the future to a court or other governing body on your own behalf.

And will that client pay for the work time that you have to spend on that duty? Probably not.

This is why you should refuse to sign NDAs with your clients.

If you explain to your client this in detail and also what data protection measures you have in place in order to keep anything that they say to you in the strictest confidence, the client should be ok. But if the client still wants you to sign an NDA, you better send him away. Such clients often turn out to be troublemakers and bad paymasters, and it is not worth spending your time with them.

What Happens If

It is simply an urban legend that attorneys steal inventions.

There has never been a single provable case of an attorney stealing an invention, ever.

It simply doesn’t happen.

Conclusion

Most attorneys simply do not sign NDAs and they are unwilling to represent those who ask for a signed confidentiality agreement.

Sure, you can find a patent attorney here and a patent agent there who will sign an NDA or a confidentiality agreement.

Don´t be that attorney. Use those clients who are asking for an NDA as a training object. Explain the legal situation to them.

And then find out whether you have an entrepreneur or a wannabe in front of you. Increase your price to see how valuable this client perceives your service. You will be surprised, these clients are also not willing to accept your regular prices. They will want a discount. Then draw your own conclusion: do you really want to work for that client?

Don´t sign that NDA. Never. Ever.

 

Martin “Contrarian” Schweiger







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