If you are an entrepreneur that provides a service, chances are you use a client agreement (if you do not, please reconsider!). And if the service you provide is of a confidential nature, such as professional organizing, your agreement most likely contains a confidentiality clause (if it doesn’t, consider adding one!).
But what confidential information are you actually protecting? And how far does that protection extend? If you are unsure, then the confidentiality clause is essentially meaningless. If you don’t fully understand its weight and coverage, how will your client? Will a court or government body be able to ascertain the full meaning and scope of the confidentiality clause when asked to issue an interpretation of the confidentiality clause’s coverage? How will it play out if the party that drafted the clause can’t provide relevant information as to its scope and intention?
As a former practicing attorney that has seen her share of confidentiality clauses, I can assure you that the importance of crafting a meaningful, powerful, but accurate and realistic confidentiality clause is vitally important to your business.
Why include a confidentiality clause in your client agreement?
Let’s first look at why you would want to include a confidentiality clause in the first place. A confidentiality clause provides a safe environment for your client and promotes trust. Your client wants to know that he or she (or “it” if you are working with an organization) can fully trust you with confidential, personal, financial or proprietary information. A confidentiality clause demonstrates to the client that you are a true professional, willing to keep certain information to yourself and not disclose such information to others except under certain circumstances (more on the exceptions later). This allows the client to be fully present and disclose information freely which may result in a better, more open relationship, which in turn may lead to an increased ability to service the client.
What can you keep confidential?
There are some typical types of information that most confidentiality clauses cover. Many include confidentiality of financial information and trade secrets, promises not to release information to third parties without permission from client, no written or electronic information retained past the termination of relationship without the permission of client, no use of client information in marketing materials without permission of client, etc. In other words, it depends. You could guarantee that all information that you obtain during the scope of your work with the client be kept confidential. You could guarantee that any information that the client deems confidential will be kept from disclosure. But if you were to make that type of blanket guarantee, you would essentially be lying to your client. Why? Because it is up to the courts to determine the scope of the confidentiality clause if challenged.
Why would a confidentiality clause ever be challenged?
Let’s look at some scenarios. Let’s say you promise to keep all financial information confidential. Then you get served with a subpoena by a court or the Internal Revenue Service advising that you must appear in court or cooperate in an investigation. Let’s take it a step further and assume that if you fail to cooperate, you can be held in contempt of court, fined, or worse, jailed. Now do you plan to stand by your blanket statement that ALL information of a confidential nature will be kept confidential? Doubtful.
There are other scenarios that may result in you being called upon to disclose information. Child protective services investigations, elderly protective services investigations, drug enforcement investigations, spousal abuse investigations, tax and financial investigations, firearms investigations, etc. The list goes on. Are these scenarios common? Not typically. But that doesn’t mean they may not arise. If they do, you need to be prepared for the fact that the confidentiality clause will most likely not be a match for the court or government agency’s stronger need for the information you possess.
Do entrepreneurs have immunity against disclosure of confidential information?
Some entrepreneurs say they will try to keep confidentiality by arguing that they have a certain type of immunity under the law. If you are a lawyer, doctor, priest, therapist, or other professional that is covered by such an immunity, then by all means, go ahead and assert it. But the average entrepreneur, and professional organizers specifically, do not have a recognized immunity under the law. Therefore, a court would most definitely overrule any immunity you try to assert and order you to disclose any and all information in order to fully cooperate.
How do you assure confidentiality in a way that is meaningful but allows for the fact that you may be called upon to answer to a higher authority?
Be careful not to draft an overly broad confidentiality statement or you will give your client a false sense of security. You can only guarantee confidentiality up to the point when disclosure is required by law or subpoena. So why not just say that? Put clear language in your actual confidentiality clause that explains when disclosure is warranted. That way, the client is aware that you have every intention of protecting confidentiality, but that if you are issued a lawful subpoena and required to disclose, you will obey the law and cooperate. (By the way, when I refer to a “higher authority” in this context, I don’t mean God, although you may feel a moral obligation to disclose is just as strong, if not stronger, than a legal one. If so, then you can envision yet another means for disclosure and breach of the confidentiality clause if you will disclose for moral reasons and not just legal ones.)
Where does that leave you and your client if you disclose based on a proper investigation and lawful subpoena?
Disclosure would probably not endear you to the client. However, that would be the lesser of two evils given that the alternative may be financial ruin or jail time. Can your client sue you for breach of contract for violation of the confidentiality clause? Sure. Anybody can sue anybody over anything at any time. But you would have a pretty airtight defense to get the case dismissed given that your disclosure was court ordered. Plus, you may just sleep better at night if your disclosure helps remedy an unlawful situation, prevent a crime, or save a person.
The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues commonly encountered.