Every once in awhile a prospective client will ask me to sign a non-disclosure agreement (the so-called “NDA”) before engaging me. I do see the irony in the fact that I provide a form NDA for my clients to use in their business dealings with others and, yet, I will never sign one in connection with an engagement for my own legal services. So just where do I get off?
Well, in most business dealings, your business counterpart does not owe you any kind of duty. Your counterpart is free to exploit whatever you reveal to her, subject only to her sense of fair play and good conscience. You can change this dynamic, however, if you and your counterpart sign an NDA. At that point her commitment becomes more than a mere matter of conscience; it becomes a binding contractual obligation.
But engaging an attorney is entirely different. Unlike most business dealings, attorneys already owe you a duty not to disclose your confidential information — even if you don’t hire them. The Rules of Professional Conduct that govern our dealings with prospective clients commands it:
(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client or except as provided in paragraph (e).
(e) A lawyer may condition conversations with a prospective client on the person’s informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter. The prospective client may also expressly consent to the lawyer’s subsequent use of information received from the prospective client.
RPC 1.18. I never ask a potential client to agree in advance that I may use the information I receive from them.
And when I am hired, the Rule becomes even clearer:
A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
In my standard terms of engagement, I make the commitment to you that I will perform work at a level “you would expect of a reasonably prudent and competent attorney providing legal services in the State of Washington under similar circumstances and time constraints.” This commitment necessarily includes complying with ethical obligations, the duty of confidentiality chief among them.
Beyond this, when you hire me, you are entitled to the benefits of the attorney-client privilege. This means that, by the Rules of Evidence, I cannot even be compelled by a court to disclose your secrets, so long as they are secrets that only you and I share during the course of our engagement.
I choose not to sign an NDA, therefore, because it doesn’t give you anything you don’t already have. It does, however, potentially matter to me. I do not want to set myself up where my contractual obligation to you potentially alters my ethical obligation to you or to any of my other clients. I will not allow other clients, past or future, to place me in a position by contract where I cannot zealously pursue your best interest. And I will not allow you to do the same to them.