When Attorneys Need NDAs
While attorney-client privilege provides robust protection, several scenarios require additional contractual confidentiality:
- Joint Defense Agreements: When multiple defendants share privileged information, NDAs preserve the common interest privilege while establishing clear boundaries.
- Expert Witnesses: Consultants and experts who receive case-sensitive information aren't automatically covered by privilege and need explicit confidentiality agreements.
- Litigation Support Vendors: E-discovery providers, document review services, and legal technology vendors handling sensitive case materials.
- Settlement Negotiations: Confidential settlement terms often require separate NDAs enforceable against non-parties to the underlying dispute.
- Due Diligence: Attorneys facilitating M&A or investment transactions need NDAs protecting client information shared with opposing counsel.
Attorney-Client NDA vs. Standard Privilege
Understanding the distinction is crucial for proper protection:
Attorney-Client Privilege: Automatically protects confidential communications between attorney and client for legal advice. It's a rule of evidence that prevents compelled disclosure in litigation. However, it can be waived through careless disclosure and doesn't apply to all third parties.
Contractual NDA: Creates a separate cause of action for breach of contract if confidentiality is violated. Applies to any designated information (not just legal advice), covers third parties who sign, and provides for negotiated remedies including liquidated damages. Cannot be "waived" in the same way privilege can.
Key Considerations for Legal Services NDAs
Legal services NDAs require special attention to several unique factors:
- Bar Rule Compliance: Ensure NDA terms don't conflict with professional responsibility obligations, particularly regarding conflicts of interest and mandatory disclosures.
- Work Product Protection: Distinguish between attorney work product (which has its own protections) and general confidential information.
- Retainer Integration: NDAs should complement, not contradict, the engagement letter or retainer agreement.
- Multi-Party Scenarios: Common interest agreements and joint defense arrangements have specific privilege requirements that NDAs must respect.
- Court-Ordered Disclosure: Include proper exceptions for legally compelled disclosure while maximizing protective order opportunities.
Expert Witness and Consultant NDAs
When engaging experts for litigation support:
- Require confidentiality extending beyond the engagement period
- Address what happens if the expert is designated as a testifying witness (discovery obligations)
- Clarify ownership of work product created by the expert
- Include non-disclosure of engagement itself if the expert is a non-testifying consultant
- Address conflicts (expert cannot serve adverse parties in related matters)
Settlement Agreement Confidentiality
Settlement NDAs require particular care:
- Define whether the existence of settlement is confidential, not just the terms
- Address regulatory reporting requirements that may override confidentiality
- Include carve-outs for legally required disclosures (securities filings, government investigations)
- Consider whether parties can acknowledge a "resolution" without disclosing terms
- Address what happens if one party is subpoenaed about the settlement