Do I really need a NDA when talking to potential lawyers?
I've seen quite a few discussions on non-disclosure agreements, but not really for when you are approaching a potential lawyer to work with. Yet, I was advised by a friend to bring a NDA, the first time I meet the lawyer to discuss our eventual future work together.
I was slightly surprised since I thought there's attorney-client confidentiality, but, I guess I won't really be a client yet , so here are my questions:
1) Do I really need a NDA for that first meeting? And if yes, what about the next ones -- at what point does the attorney-client confidentiality begins?
2) How much of the startup idea is it safe to discuss during a first meeting?
A bit of additional info: at this point, I'll need the lawyer mostly to make sure I've properly filled out documents and checking my TOS. Nothing "major". And, in case it matters, the plan is to launch the initial version of the service in January.
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You can ignore this and all future advice from that friend. – Tim J 12 years ago
3 Answers
If you are consulting an attorney about possibly hiring that attorney, then the attorney-client privilege starts immediately and the attorney is obligated to keep everything in confidence. You don't need an NDA and many attorneys would refuse to sign one.
In terms of what you need to disclose, disclose everything the attorney needs to know to do the work for you but no more. You never know what could happen: the attorney could be a scoundrel, a hacker could hack his computer systems, his secretary's spouse may work for your competitor, etc.
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Thank you Jeff and Don, your answers are extremely helpful. I thought so too, but wanted to double-check, to make sure I'm not missing something important after what my friend said. – Claudia 12 years ago
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You should expect the lawyer to do a "Conflicts Check" before you really start giving them all sorts of confidential information. For example, if you're considering signing a contract with one of the attorney's other clients, he'd want to know that before you started telling him about that deal. – Chris Fulmer 10 years ago
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If your idea is really good have your attorney sign the NDA. Attorney client priv is harder to prove then if you break down what is being discussed and have him sign off. It will do two things, calm your paranoia and give you added protection. Trust me, lawyers get sued and break ethics codes all the time. I have gone up against 2 attorneys which now are dis-barred. They can get as dirty as anyone else, because they are human. An NDA can be a 2nd layer to solidify privilege. – Frank 10 years ago
There is no reason for a lawyer to sign an NDA in the situation you have described. You should feel free to discuss your ideas in as much detail as you believe will be helpful.
So long as you are consulting the attorney, in confidence, in his or her professional capacity to retain the attorney or to obtain legal services or advice, the attorney is obligated to maintain information that you provide in confidence - and that confidentiality obligation is much stronger than the confidentiality obligations in the typical NDA.
For more on this topic, please see "Why Your Lawyer Need Not Sign an NDA ".
Disclaimer: This information does not constitute legal advice and does not establish an attorney-client relationship.
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Thank you Dana. Your blog post is very informative. May I ask you a small additional question? Would there be any case in which I would actually want to have a NDA between me and the lawyer? – Claudia 12 years ago
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Not if you are consulting the lawyer under the circumstances described in my answer. However, if you are talking to the lawyer in a non-legal capacity - e.g., as a potential investor - then the fact that the individual is a lawyer is irrelevant, and an NDA can be appropriate. – Dana Shultz 12 years ago
